IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130009274 


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, he believes his current characterization of service improperly describes his period of enlistment.

3.  The applicant provides a self authored statement.

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 on 14 January 1970 and he was awarded military occupational specialty 64C (truck master) upon completion of his required training.
3.  The specific facts and circumstances of his discharge proceedings are not available for review; however, the applicant's record contains:

	a.  Special Orders Number 60, issued by Headquarters, U.S. Army Training Center (USATC) and Fort Campbell, dated 13 March 1972, showing the applicant was reduced to private (PV1/E-1) for misconduct effective 4 March 1972.

	b.  A Standard Form 502 (Narrative Summary), dated 24 February 1971,  which shows the applicant was treated at the U.S. Military Hospital, Fort Campbell, KY after being medically evacuated from Germany.  The military psychologist noted the applicant was preoccupied with family problems.  The applicant reported that his father periodically became psychotic and exhibited threatening and abusive behavior toward his mother and sister.

	c.  A DA Form 188 (Extract Copy of Morning Report), dated 14 February 1972.  This document shows:

* the applicant departed absent without leave (AWOL) on 3 August 1971 from Headquarters and Headquarters Company, USATC and Fort Campbell, KY
* on 28 September 1971, he was returned to military control at Fort Campbell, KY

4.  His record contains a DD Form 214 that shows on 13 March 1972, he was discharged 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 with an undesirable discharge.  He completed 1 year,
8 months, and 15 days of creditable active service.  It further shows he had 167 days of time lost.

5.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

6.  In his statement the applicant contends that he moved back home to take care of his mother and sister after his parents separated.  He initially tried to request a hardship discharge but it took too long; therefore, he went AWOL in order to provide for his family.  After being apprehended he was returned to Fort Campbell, KY where he was given the option of an undesirable discharge or a dishonorable discharge.  He took the undesirable discharge because he was told that he could keep his veterans benefits.  He would like his discharge upgraded to general in order to receive the benefits that he is currently being denied. 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

	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.

8.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his undesirable discharge.

2.  He contends that he had no alternative but to go AWOL in order to provide for his family.  The applicant's record is void of the specific facts and circumstances surrounding his discharge; however, the evidence of record shows that he was reduced to PV1 due to misconduct and that he had 167 days of lost time due to being AWOL.  It appears that upon his return to military control he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice 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.  The applicant is further presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.

3.  In the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  There is no evidence of record and the applicant did not provide any evidence that shows his discharge was in error or unjust.  On the contrary, his available record shows he did not met the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130009274



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ABCMR Record of Proceedings (cont)                                         AR20130009274



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