IN THE CASE OF: 

		BOARD DATE:	    4 February 2014

		DOCKET NUMBER:  AR20130009236 


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 discharge to a general or honorable discharge.

2.  He states a member of his unit was killed during training.  The Soldier was sleeping under the back of a "double deuce" truck and was run over when the vehicle backed up in the morning.  He witnessed the Soldier's sleeping bag with his body in it being placed in a truck to be driven back to base.  Shortly after, he went absent without leave (AWOL) because he was having mental health issues after witnessing the death.  He was caught and sent back to his unit.  The unit sergeant was mad because he disgraced the unit.  The sergeant made him put his hands on a metal footboard, and the sergeant smacked his hands with a baton or bat, which hurt badly.  He went AWOL again and later turned himself in.  He ended up at Fort Knox, KY, and was given a "dishonorable discharge under medical conditions" because he could not adapt to military life.  He wishes he had done things differently, but he can't change the past.   

3.  He provides no additional evidence in support of his application.

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.  On 20 August 1974, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty (MOS) 43J (Textile Repairman).  He later served in duty MOS 11C (Indirect Fire Infantryman) with principal duty as a radio telephone operator.

3.  On 8 January 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 6 to 7 January 1975.

4.  A DD Form 458 (Charge Sheet), dated 5 August 1975, shows he was charged with being AWOL for three periods in 1975:

* 15 to 17 April
* 23 to 24 April
* 6 May to 16 July

5.  On 7 August 1975, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights available to him.

6.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He stated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He acknowledged:

* he was guilty of the charges against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate as a result of his request
* he had been advised of and understood the possible effects of an undesirable discharge 
* as the result of such a discharge, he would be deprived of many or all benefits administered by the Veteran's Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State law
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	c.  He indicated he would submit a statement in his own behalf.

7.  In the statement he submitted with his request for discharge, he stated:

* he enlisted in the Army because he thought he would like it, but he did not
* he went AWOL because he had never been away from home or away from his mother since his father was killed in 1957
* if his request was not approved, he would continue to go AWOL

8.  On 13 August 1975, his commanding officer recommended approval of his request for discharge for the good of the service.  In his endorsement of the request, the commanding officer stated there did not appear to be any reasonable ground to believe that, at the time of the misconduct, the applicant was mentally defective, deranged, or abnormal.

9.  His record shows his request to be discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10, was approved on or about 15 August 1975.  The separation authority directed that he be furnished an Undesirable Discharge Certificate (DD Form 258A).  

10.  On 27 August 1975, he was discharged accordingly after completing 9 months and 24 days of total active service with 75 days of time lost.  His DD Form 214 shows his service was characterized as under other than honorable conditions.

11.  His record is void of documentation showing he witnessed the death of a fellow Soldier or that he was physically abused by a sergeant.

12.  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.
13.  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.  The request was to include the member's admission of guilt.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  When warranted, commanders were to provide a statement indicating the member was mentally defective, deranged, or abnormal.  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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.

3.  Based on his periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade his 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)                                         AR20130009236





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009236



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1