IN THE CASE OF:	  

		BOARD DATE:  7 January 2014

		DOCKET NUMBER:  AR20130008501 


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 discharge be upgraded to a general discharge.

2.  The applicant states:

	a.  His time in the service was honorable other than the time spent due to his mother dying when he asked for a hardship reassignment.  He had two [negative] things happen while he was in the service.  First, he was 1 day late getting back on post.  There was a forest fire near his home and the State Fire Warden came through and told him he had to fight the fire or be in contempt.  The second one was the destruction of the hand guard on his M-16 rifle.  He did pay $150.00 for the damage he caused and he received an Article 15.

   b.  He had a family crisis in 1974 when he was overseas in Germany and his mother passed away.  He asked for an assignment to Fort Jackson, SC, but it was denied.  He only had 11 months left on his commitment when he accepted a discharge under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, in lieu of trial by court-martial.  He was told "it would be good" but he lost some benefits.  He is not asking for an honorable discharge, just for an upgrade to a general discharge.  He is now applying for disability benefits and a pension.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), three statements of support, and a letter.

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 enlisted in the Regular Army on 31 January 1972 and he held military occupational specialty 11D (Armor Reconnaissance Specialist).  On 7 July 1972, he was assigned to the 1st Battalion, 16th Infantry Regiment, Germany.

3.  On 24 July 1973, he was reported as absent without leave (AWOL) from his assigned unit.  He returned to his assigned unit on 26 July 1973.

4.  On 18 December 1973, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully destroying military property, his handgun guard.  

5.  On 8 April 1974, he was reported as AWOL from his assigned unit and on 7 May 1974 he was dropped from the rolls as a deserter.

6.  On 26 September 1974, he was apprehended and returned to military control at Fort Bragg, NC.  He was subsequently assigned to the Personnel Control Facility (PCF), Fort Bragg, NC.

7.  On 30 September 1974, court-martial charges were preferred against him for one specification of being AWOL from 8 April to 26 September 1974.

8.  On 2 October 1974, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. 

10.  On 9 October 1974, he underwent a mental status examination.  The examining physician completed a DA Form 3622 (Report of Mental Status Evaluation) wherein he noted the applicant's behavior and thought content was normal, he was able to distinguish right from wrong, he did not have any mental illness, and he had the capacity to participate in board proceedings. 

11.  His immediate commander subsequently recommended approval of his request for a discharge.  The commander stated he personally conducted an interview with the applicant and the applicant had stated he desired elimination from the service, his AWOLs were caused by the fact that he didn't like his assignment, and he had no intention of trying to adjust to Army life.  He further stated in view of the applicant's personal conduct, his attitude toward military life, and his lack of rehabilitative potential, he should be discharged with the issuance of an Undesirable Discharge Certificate.

12.  His senior commander subsequently recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.  

13.  On 30 October 1974, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 13 November 1974, he was discharged accordingly. 

14.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 by reason of for the good of the service - in lieu of court-martial (separation program designator KFS) with an under other than honorable conditions characterization of service.  He completed 2 years, 3 months, and 20 days of net active service and had 196 days (6 months and days) of lost time due to being AWOL.

15.  There is no evidence in his available record that shows he ever requested and was denied a hardship reassignment due to the illness of his mother.
16.  The applicant provides three statements of support, dated 24 May 2012, 14 July 2012, and 4 April 2013, wherein a sheriff stated the applicant had no record involving criminal acts since 2004, and his employer and a friend stated they had known the applicant over 36 years and he was an excellent employee and an asset to the community. 

17.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

18.  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 included 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.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

19.  Army Regulation 635-200, paragraph 3-7a, provides that 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.

20.  Army Regulation 635-200, paragraph 3-7b, provides that 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.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  


3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Although his post-service conduct may be noteworthy, it does not negate the fact that he went AWOL during his military service.

5.  His record of service shows he received NJP on one occasion for destroying military equipment and during his service he went AWOL on two separate occasions.  At the time of his discharge, he had over 6 month of lost time for being AWOL.  

6.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

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)                                         AR20130008501





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ABCMR Record of Proceedings (cont)                                         AR20130008501



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