IN THE CASE OF:	

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130008755 


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.  He states he had requested to be released from the Army as a conscientious objector.

3.  He provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Undesirable Discharge Certificate
* Military Police Report
* DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 9 February 1974
* commander's recommendation for discharge

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 was inducted into the Army of the United States on 27 December 1972.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 21 May 1973 for failing to go at the time prescribed to his appointed place of duty.

4.  In a memorandum for record, dated 26 June 1973, the commander stated the applicant informed him on 13 or 14 June 1973 that he did not intend to comply with reassignment instructions to Fort Jackson, SC, because he wanted to go home.  He further informed the commander he would be absent without leave (AWOL) to remain away from the military service permanently, either before clearing his unit or while enroute to Fort Jackson.  The commander said the applicant gave him a DA Form 2496 (Disposition Form) stating he intended to apply for conscientious objector status and he gave the applicant a 7-day delay to submit his application.

5.  On 13 August 1973, charges were preferred against the applicant for being AWOL from 6 July 1973 to 8 August 1973.

6.  On 23 August 1973, he consulted with counsel and 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.

7.  He signed his request for discharge which showed he was making the request under his own free will, he was afforded the opportunity to speak with counsel, he understood he might be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all Veterans Administration benefits, and he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his behalf.

8.  On 30 August 1973, the appropriate authority approved his request and directed the issuance of an Undesirable Discharge Certificate.

9.  On 7 September 1973, he was discharged accordingly.  His DD Form 214 shows he received an Undesirable Discharge Certificate with his service characterized as under other than honorable conditions.  It also shows he completed 7 months and 8 days of net active service during this period with lost time from 6 July 1973 to 7 August 1973.

10.  His records are void of any evidence that shows he applied for conscientious objector status and/or the disposition of such application.

11.  On 21 March 1981, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 14 May 1982 after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly discharged.

12.  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 3-7a 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.  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 argues, in effect, that his discharge should be upgraded because he requested to be released as a contentious objector.  There is no evidence of record and he has not provided any evidence to show he applied for conscientious objector status and denial of his request precipitated his AWOL and/or he sought assistance through his chain of command.

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 over 33 days of lost time and one Article 15.  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 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)                                         AR20120014411



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ABCMR Record of Proceedings (cont)                                      AR20130008755



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