IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130008717 


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.

2.  The applicant states he requested an early release from the Army, but his commander at the time refused to sign it.  The first sergeant told him not to come back after Christmas leave and they would send his discharge in the mail.  Two agents came to his mother's house and arrested him for being absent without leave (AWOL).  He only had 6 months left on his enlistment contract and he would not have been AWOL.  He tried to contact his unit while he was on leave, but his first sergeant was never available to take the call.

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army on 20 August 1970 and he held military occupational specialty 17D (Surveillance Radar Crewmember).  He appears to have served in Korea with the 1st Battalion, 31st Infantry.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 7 January 1972 in Korea for being AWOL from 30 December 1971 to 3 January 1972
* 24 August 1972 at Fort Meade, MD, for being AWOL from 17 July 1972 to 16 August 1972
* 6 December 1972 at Fort Meade, MD, for being AWOL from 6 to 8 November 1972 and from 28 to 30 November 1972

4.  A DD Form 458 (Charge Sheet) shows his command preferred court-martial charges against him on 12 June 1973 for three specifications of being AWOL from on or about:

* 26 April to 2 May 1972
* 28 December 1972 to 29 May 1973
* 3 June 1973 to 5 June 1973

5.  On 6 July 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him. 
Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge he indicated the following:

	a.  He was making the request of his own free will and he had not been subjected to any coercion by anyone.

	b.  He acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

	c.  He understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

	d.  He elected to submit a statement in his own behalf.  He stated:

* he was messed up in every duty station he was assigned to and he resorted to drugs while serving in Korea
* he tried to get away from the drugs but realized that as long as he was in the military, he would continue to be depressed and use drugs
* the Army realized there was no hope and he was ultimately identified for elimination under the Qualitative Management Program
* he requested a pass during the holidays – his first sergeant told him there was no use in coming back and that his discharge would be mailed to him
* when he got home, he completely forgot about the Army and he went on with his life since he did not hear anything from anyone
* just when he began the good life, agents picked him up for being AWOL which caused his wife to nearly have a nervous breakdown
* there was no way he would have returned to duty and he knew he would be AWOL again
* neither he nor his wife liked the Army and that is why he wanted the discharge
* it would be good for the Army if his discharge action were approved for the simple reason that he could not adjust

6.  The applicant's immediate commander recommended approval of the discharge action.  He stated the applicant had demonstrated he is unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  The applicant had been interviewed and his statement, demeanor, and attitude indicated the discharge action would be best.

7.  The applicant's intermediate commander also recommended approval of the discharge action with the issuance of an undesirable discharge.  He opined the applicant would never be a productive Soldier.

8.  On 23 July 1973, the separation authority approved the applicant's request for voluntary discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and his reduction to the lowest enlisted grade.  The applicant was accordingly discharged on 27 July 1973.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  This form shows he completed 2 years, 4 months, and 28 days of active service and he had 192 days of lost time.  His service was characterized as under conditions other than honorable.

10.  On 25 January 1982, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged.  Accordingly, the ADRB denied his petition for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	a.  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.

	b.  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 records show he 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  The available evidence clearly shows a period of service marred with misconduct from the beginning and continued throughout his military service.  He had three instances of NJP, an extensive history of AWOL, and he was faced with a trial by court-martial.

3.  He elected to be AWOL on more than one occasion.  Also, upon preferring of court-martial charges against him, he consulted with counsel and he was advised of his rights and options.  His options were to face trial by court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He chose the voluntary discharge.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct 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 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)                                         AR20130008717



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ABCMR Record of Proceedings (cont)                                         AR20130008717



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