IN THE CASE OF:	  

		BOARD DATE:  23 January 2014

		DOCKET NUMBER:  AR20130008738 


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 upgrade of his undesirable discharge to a general or an honorable discharge.

2.  He states he is a homosexual and was discharged for that reason which denotes sexual discrimination.

3.  He does not provide any 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 enlisted in the Regular Army (RA) on 30 August 1971.  On 
24 May 1972, he was honorably discharged for immediate reenlistment which occurred the following day.
3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 6 April 1973 for exceeding the posted speed limit by 25 miles on 25 March 1973
* 10 October 1973 for sleeping on his post while being posted as a sentinel on 9 October 1973
* 28 November 1973 for being absent without leave (AWOL) from 
17 October to 14 November 1973

4.  On 28 February 1974, charges were preferred against him for being AWOL from 18 December 1973 to 16 February 1974.

5.  On 6 March 1974, 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 statements in his behalf, but they were not contained in his record.

7.  His record is void of any evidence that indicates he was discharged for homosexuality.

8.  On an unknown date, 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.

9.  On 14 May 1974, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) 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, 
8 months, and 22 days of active service this period with 88 days listed as lost time.

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

11.  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.  Paragraph 3-7a states 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 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 he was discharged for homosexuality.  There is no evidence and he has not provided any evidence to show he was discharged for homosexuality.  The evidence of records shows he was charged with being AWOL for 88 days and he requested voluntarily requested discharge in lieu of court-martial.  Therefore, his contention is not supported by the evidence of record.

2.  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.

3.  His record of service included three NJPs and 88 days of lost time.  Based on this 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 as 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)                                         AR20130008738





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ABCMR Record of Proceedings (cont)                                         AR20130008738



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