IN THE CASE OF:	  

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130009235 


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, in effect:

   a.  He was given an undesirable discharge due to a severe misunderstanding.  After reviewing all of the facts in his case he sincerely believes the Board will upgrade or grant him a hardship discharge due to the stressful conditions which led to his discharge.

   b.  He was a young 17 year old who served honorably in the Republic of Vietnam and later in Korea.  He was a good Soldier whose problems started when he married too young.  After his wife started acting out and disrupting the marriage he went absent without leave (AWOL) in an attempt to reconcile with his spouse.  He now knows that this was a mistake due to his immaturity.  

   c.  He would like to stress that the Department of Veterans Affairs (VA) has ruled that his service was honorable for VA purposes.   

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* numerous pages of correspondence written to and from the VA
* a self-authored statement
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* VA Form 21-4138 (Statement in Support of Claim)
* DD Form 258A (Undesirable Discharge Certificate)
* VA Form 21-4142 (Authorization and Consent to Release Information to the VA)
* VA Form 21-526 (Veteran's Application for Compensation and/or Pension)
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)
* Special Orders Number 181 Extract
* DA Form 2962 (Security Termination Statement and Debriefing Certificate)
* DD Form 1351 (Travel Voucher)
* DA Form 3710 (Joint Uniform Military Pay System (JUMPS) Army Local Payment Receipt)
* DD Form 1482 (Military Airlift Command (MAC) Transportation Authorization)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a Veterans Service Officer as Counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel 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 enlisted in the Regular Army for 3 years on 31 March 1971 at the age of 17 years, 2 months, and 10 days.  His record shows he completed basic combat and advanced individual training and was awarded military occupational specialty 36K (Field Wireman).  

3.  Evidence further shows the applicant received a summary court-martial for being AWOL for the period 29 October 1972 through 8 January 1973.  The applicant was 19 years, 8 months, and 8 days of age at the time he went AWOL.

4.  On 13 April 1973, court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ).   Specifically, the applicant was, without authority, absent from his unit for the periods 22 February through 19 March 1973 and 20 March through 2 April 1973. 

5.  On 18 April 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily 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.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected to submit a statement in his own behalf in which he stated that his AWOLs were caused by marital problems and his concern for the welfare of his child after his marriage had broken up.  He further stated that he must get out of the Army to care for his child and that he desired to leave the service as soon as possible.  

7.  The DD Form 214 he was issued shows he was discharged on 22 May 1973, under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He completed 1 year, 9 months, and 2 days of creditable active military service with 109 days of lost time.  This form further shows he served in the Republic of Vietnam from 20 August to 31 August 1971 and Korea from 1 September 1971 to
11 September 1972.

8.  The applicant provides documentation from the VA which shows he receives service-connected compensation and the VA determined his service was honorable for VA purposes for the period 31 March 1971 to 22 May 1973.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time.

	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 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's contention that his discharge should be upgraded was carefully considered and it was determined to be without merit.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  There is no evidence he was coerced into signing any documents.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade of his discharge to either an honorable or a general discharge.

5.  With respect to his age and maturity, the applicant was over 19 years and
8 months of age at the time of his first instance of AWOL.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  

6.  The applicant further contends his discharge should be upgraded because his service for the period 31 March 1971 to 22 May 1973 was determined to be honorable for VA purposes.  While the Board may be influenced by the VA's determination, the Board is in no way bound by the VA's ruling.   

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130009235



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ABCMR Record of Proceedings (cont)                                         AR20130009235



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