BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130008645 


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 an upgrade of his undesirable discharge to general under honorable conditions.

2.  He states he received bad advice and guidance by his superiors and was told if he signed a letter of discharge that the discharge would be automatically upgraded after 6 months.  He explains that he was 17 years old and had just enlisted in the military when he discovered that his mother's mental state was deteriorating and she could no longer care for his two younger brothers.  He offers that she moved in with his grandparents, but was later placed in a mental institution.  After graduating from basic training he returned home to find that his grandfather's health was also deteriorating which caused additional stress on his mother.  He maintains that he sought guidance from the chaplain and received a notice from Red Cross confirming his grandfather's health problems as instructed by his company commander.  However, his company commander denied his leave request to attend his grandfather's funeral.  He opines his discharge was both unfair and improper based on the fact that he had serious family problems.

3.  He provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Doctor's note
* Self-authored statements, dated 26 March 2013 and 28 April 2013
* Documents from his chapter 10 packet
* Two supporting statements
* Page 4 of his DA Form 20 (Enlisted Qualification Record)

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 (RA) on 10 February 1970.

3.  On 22 September 1970, he was convicted by a special court-martial of two specifications of being absent without leave (AWOL), from 19 to 21 May 1970 and 29 May to 1 October 1970.  He was sentenced to confinement at hard labor for 2 months and a forfeiture of $25.00 per month for two months.

4.  On 28 October 1971, charges were preferred against him for being AWOL from 30 July to 15 August 1971 and 22 August to 18 October 1971. 

5.  On 5 November 1971, after consulting with counsel, the applicant 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.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all Veterans' Administration benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.

7.  In his statement, the applicant said he had received one court-martial and two Article 15s for AWOL.  He offered that the primary reasons behind his AWOL offenses were his mother's mental and financial problems.  He said his mother hoped that he would return home to help.  He said the approval of his resignation was vital in his family's resolution.

8.  On 3 December 1971, the battalion commander recommended approval and issuance of an Undesirable Discharge Certificate.  He stated the applicant had six periods of AWOL and 227 days of bad time.  He said the financial and health conditions of the applicant's mother, plus a strong feeling on the applicant's part to assist his mother, precipitated his frequent AWOLs.

9.  On 9 December 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

10.  On 16 December 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge.  He completed 1 year, 3 months, and 2 days of active service this period with 229 days listed as lost time.

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

12.  His record is void of any Article 15s.  Additionally, there is no evidence to show he applied for a hardship discharge.

13.  The two supporting statements submitted by the applicant speak about the applicant's childhood problems due to his mother's mental illness.  The applicant's spouse stated the applicant carried a lot of guilt due to not being able to fulfill his duties to serve his country.  Another author requested favorable consideration of the applicant's request so that he (applicant) might finally have peace. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

	b.  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.  There are no provisions in the Army regulations for automatically upgrading a discharge after a period of time has elapsed.  The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.  Therefore, his contention that he received bad advice concerning his discharge being upgraded after 6 months is not sufficient as a basis to upgrade his discharge now.

2.  He contends, in effect, that his serious family problems influenced his behavior.  Although the applicant's commander acknowledged that the applicant's mother's financial and health conditions precipitated his frequent AWOLs, there is no evidence and he has not provided any evidence to show he sought counseling and/or a hardship discharge to correct his family problems prior to beginning his series of AWOLs.  Therefore, this contention is not supported by the evidence of record.

3.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record also shows he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.

4.  His record of service included 229 days of time lost.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130008645





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ABCMR Record of Proceedings (cont)                                         AR20130008645



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