IN THE CASE OF:	   

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130008698 


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 a discharge under honorable conditions (general).

2.  The applicant states:

* He knows that the man he was is not the man he has become
* It's nice to be important, but it more important to be nice
* If given a chance he will be an asset to society

3.  The applicant provides:

* Army Review Boards Agency letter, dated 28 March 2013
* Reports of Medical History, dated 3 December 1973 and 21 January 1975
* Recommendation for Approval of Discharge, dated 27 January 1975
* Canaan Baptist Church Letter of Reference, dated 28 April 2013
* Letter of Reference, dated 24 April 2013
* True Heart Ministries Letter of Reference, dated 24 April 2013

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 13 December 1973.  He completed training as an amphibian operator.

3.  On 27 June 1974, the applicant accepted nonjudicial punishment (NJP) for the following offenses:

* being absent from his place of duty on or about 1 June and 3 June 1974
* refusing to go to his appointed place of duty on 11 June 1974
* being absent from his place of duty on 13 June 1974

4.  On 21 October 1974, the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 29 July 1974 until 23 September 1974 and for being AWOL from 14 October 1974 until 21 October 1974.

5.  He acknowledged receipt of the notification for discharge.  On 15 January 1975, after consulting with counsel, he submitted a 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.

6.  On 13 February 1975, the appropriate authority approved the applicant's request and directed the issuance of an undesirable discharge.

7.  On 14 February 1975, the applicant was discharged 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 under other than honorable conditions discharge.  He completed 10 months and 14 days of total active service.  He had 108 days of lost time due to AWOL and confinement.

8.  A review of the available records does not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  The applicant provides three letters of reference from individuals attesting to his good character and post-service conduct.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states 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 of the applicant’s discharge.

   b.  Paragraph 3-7a states 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.  Paragraph 3-7b states 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's contentions have been noted.  His supporting evidence has been considered.

2.  He is commended for his post-service conduct.  However, his post-service conduct is not sufficiently mitigating to warrant the requested relief.  His records show he accepted NJP for being absent from his place of duty and for refusing to go to his appointed place of duty.  Charges were pending against him for being AWOL from 29 July 1974 until 23 September 1974.  He was also AWOL from 14 October 1974 until 21 October 1974.

3.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial.  The appropriate authority directed the issuance of an undesirable discharge.

4.  The type of discharge he received appropriately reflects his overall record of service.  Considering the nature of his offenses the type of discharge he received was not too severe.  His service simply did not rise to the level of a general or an honorable discharge.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20130008698





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ABCMR Record of Proceedings (cont)                                         AR20130008698



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