IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130008650 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that when he enlisted in the Army in 1972 he could not read or write, and he was having seizures.  He states that his recruiter lied and told him that he passed the General Educational Development (GED) test.  He did this in order to make his recruiting quota.  He also states that, if he had been tested, it would have been discovered that he did not pass the GED and that he could not read or understand the orders that were issued to him.  He adds that he did not pass the GED test until 1995.

3.  The applicant provides a copy of a State of Indiana, American Council on Education, Official Report of Test Results, that show he passed the GED Test on 1 November 1995.

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.  A DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows the applicant enlisted in the Regular Army on 21 January 1972 for a period of 3 years.  Item 47 (Data Processing Code) lists his aptitude test scores and shows that the tests were administered on 6 January 1972.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), reviewed by the applicant on 26 January 1972, shows in:

   a.  item 25 (Other Tests), the Armed Forces Qualification Test (AFQT) was administered on 21 January 1972 and he achieved a score of 36; and

   b.  item 32 (Civilian Education):

* Name and Location of School:  Unknown
* Degree and/or Major Subject:  GED
* Year Completed:  1972

4.  The applicant completed basic combat training at Fort Ord, CA, on 23 March 1972.

5.  He was then assigned, as follows:

* on 14 April 1972, to Fort Benning, GA, for airborne training
* on 19 April 1972, to the Training Support Brigade, Fort Benning, GA
* on 13 May 1972, to Fort Gordon, GA, for training in military occupational specialty 31M (Radio Relay and Carrier Antenna)
* on 17 June 1972, to Fort Sam Houston, TX, for training in MOS 91A (Medical Aidman)

6.  The applicant accepted non-judicial punishment (NJP) for being absent without leave (AWOL) from 3 to 7 July 1972 and for failing to go to his appointed place of duty on 10 July 1972.

7.  On 10 August 1973, court-martial charges were preferred against the applicant for being AWOL from:

* 3 August to 3 October 1972
* 7 October 1972 to 10 March 1973

* 16 March to 15 May 1973
* 15 May to 23 July 1973

8.  On 21 August 1973, the applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

   a.  He acknowledged he understood the elements of the offenses charged and that he was guilty of the charge against him, or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.

   b.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given an undesirable discharge.

	c.  He was also advised that he could submit any statements he desired in his own behalf and he elected to submit a statement in his own behalf.

	d.  The applicant and his counsel placed their signatures on the document.

9.  On 29 August 1973, the applicant submitted a hand-written (in script) 2-page letter explaining the reasons for him enlisting in the Army and for going AWOL.  He stated that he was married with children and he was out of work when he enlisted in the Army.  While at Fort Sam Houston, his pay was "messed up for 
6 months," so he went AWOL to go home, get a job, and support his family. 

10.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.

11.  The separation authority approved the applicant's request for discharge and directed separation with an undesirable (under other than honorable conditions) discharge.

12.  The applicant's DD Form 214 shows he was discharged on 10 September 1973 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.
   a.  He completed 8 months and 2 days of net active service this period.

   b.  Item 30 (Remarks) shows he had 352 days lost under Title 10, U.S. Code, section 972.

13.  On 24 January 1977, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting a review of his discharge.  He contended that his periods of AWOL were due to his non-receipt of pay, a lack of assistance with personal and financial problems, and that the military was negligent by not placing him in pre-trial confinement despite knowing he was a chronic AWOL offender.

14.  On 12 October 1977, the ADRB notified the applicant that a review of his military records determined he was properly discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

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

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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 applicant contends that his discharge under other than honorable conditions should be upgraded because he could not read or write, he lacked the qualifications to enlist in the Army, and he could not understand the orders that were issued to him.  He was also having seizures at the time.

2.  There is no evidence of record and the applicant provides insufficient evidence to show that he was suffering from seizures that caused him to be unqualified for enlistment in the Army.

3.  The evidence of record shows the applicant was administered the AFQT and aptitude tests to determine his qualifications for entry in the Army and potential for training in various areas, and that he was then authorized to enlist in the Army.  The evidence of record is not clear regarding the year the applicant completed his GED (i.e., 1972 versus 1995).  However, it is possible the GED test was administered to the applicant (and he passed the test) in both 1972 and 1995.  In any event, the evidence of record (in the form of the applicant's own written statement accompanying his request for discharge) clearly shows he could write (and therefore, read and understand orders) while serving in the Army.  Thus, his contentions regarding his literacy and mental capacity are not supported by the evidence of record.

4.  The evidence of record shows the applicant was charged with four specifications of being AWOL and he elected to request discharge in lieu of being court-martialed.

5.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

6.  During the period of service under review, the applicant received NJP, he had 352 days (i.e., nearly 1 year) of time lost, and he completed only 8 months of his
3-year enlistment obligation.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

7.  Therefore, there is an insufficient basis for granting the requested relief.


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)                                         AR20130008650



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ABCMR Record of Proceedings (cont)                                         AR20130008650



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