IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130008195 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his under other than honorable conditions characterization of service be upgraded to under honorable conditions (general). 

2.  The applicant states that his parents sold him to grown men for sex between the ages of 6 and 13, when he ran away and took to the streets of New York City (NYC).  He enlisted in the Army to get off the streets.  Now he is a 57 year old man suffering from post-traumatic stress disorder (PTSD), an antisocial personality disorder, chronic depression, and anxiety disorder.  His doctors told him he had these disorders when he enlisted and that based on the Army's current guidelines he would not have been permitted to enlist.  He would like his characterization of service upgraded so that he can use the veterans unit at the unemployment office.

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record contains a DD Form 398 (Statement of Personal History), dated 23 January 1973.  This form shows that he and his parents shared same address.

3.  His record contains two DD Forms 373 (Consent, Declaration of Parent or Legal Guardian), dated 23 January 1973.  This form was required for the enlistment of a minor in the U.S. Armed Forces.  Both of his parents signed the form.

4.  He enlisted in the Regular Army on 31 January 1973.  The highest rank/grade he attained while serving on active duty was private (PV1)/E-1.

5.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 2 May 1973 for being absent without leave (AWOL) from 26 April 1973 to 29 April 1973.

6.  His record contains a DD Form 458 (Charge Sheet) dated 23 July 1973 which shows he was charged with being AWOL from:

* 8 May 1973 to 24 May 1973 
* 26 May 1973 to 21 July 1973

7.  His record contains a Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 21 May 1974.  These forms show he had a separation physical, was in good health, and was medically qualified for separation.

8.  His record contains a DD Form 458, dated 22 May 1974, which shows:

	a.  he was charged with being AWOL from:

* 8 May 1973 to 24 May 1974
* 26 May 1973 to 21 July 1973
* 17 September 1973 to 26 September 1973
* 15 October 1973 to 11 March 1974
* 11 March 1974 to 20 May 1974

	b.  He had not been offered NJP under the provisions of Article 15 of the UCMJ for the listed charges.
9.  On 23 September 1974, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  

10.  In his request for discharge he indicated he understood that by requesting discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  His record contains a memorandum issued by his company commander on 
7 June 1974 which recommended approval of the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. 

12.  His record contains a memorandum issued by his battalion commander on 
7 June 1974 which recommended approval of the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  Additionally, his battalion commander recommended that he receive an undesirable discharge.

13.  On 17 June 1974, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an undesirable discharge.  Accordingly, he was discharged on 28 June 1974.

14.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service with an under conditions other than honorable characterization of service.  His DD Form 214 also shows he completed 6 months and 29 days of net active service and had 302 days of lost time.

15.  There is no indication that the applicant applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu 
of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time. 

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  His record contains NJP, two charge sheets, and an extensive history of AWOL for 302 days of lost time which tarnished his overall record of service.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  As such, he is not entitled to an honorable or a general discharge.

3.  The ABCMR does not upgrade discharges solely for the purpose of making an individual eligible for benefits.  Every case is individually decided based upon its merits.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130008195





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008195



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1