BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130009359 


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 more favorable discharge.

2.  The applicant states he completed his training and was assigned to Korea.  He came home to get married and to be there for his daughter’s birth, which occurred the day before he arrived.  Before he realized it, he had spent the money for his return ticket to Korea and was 2 weeks absent without leave (AWOL).  

3.  He goes on to state that when he returned to Korea, he was court-martialed and reduced to private E-1.  Thirty days before his tour was completed his 
step-father committed suicide and his mother wanted him brought home, which they did.  He was reassigned to Fort Sill, Oklahoma and when he contacted his wife to join him, she told him that his daughter was sick and if he did not come home she would leave him.  

4.  The applicant states he requested leave and was denied so he went AWOL to fix things up with his wife.  After 3 or 4 months, he turned himself in and was incarcerated for 45 days and given an undesirable discharge. 

5.  The applicant provides a one-page letter explaining 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.  The applicant enlisted in the Regular Army in Los Angeles, California on        8 October 1968 for a period of 3 years and training as a wheel vehicle repairman.  He was transferred to Fort Ord, California to undergo his one-station unit training.

3.  On 27 January 1969, nonjudicial punishment was imposed against him for being AWOL from 20 January to 21 January 1969.

4.  He completed his training and was transferred to Korea on 19 March 1969.

5.  On 7 January 1970, he was convicted by a summary court-martial of being AWOL from 27 October to 25 November 1969.  He was sentenced to confinement at hard labor for 24 days, reduction to E-1 and a forfeiture of $30.00.

6.  On 30 April 1970, he was assigned to Fort Sill, Oklahoma and on 11 August 1970, he went AWOL and remained absent in desertion until he was returned to military control on 15 November 1970.  He again departed AWOL on 
22 December 1970 and remained absent in desertion until he was returned to military control on 15 February 1972.

7.  The facts and circumstances surrounding his discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Los Angeles in 1990.  However, his records do contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 7 April 1972 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  He had served 1 year, 10 months, and 23 days of active service and had 577 days of lost time due to AWOL and confinement.

8.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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

	a.  Chapter 10 provides, in 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 3-7b 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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, the applicant voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions are not sufficiently mitigating to warrant relief under the circumstances, especially given the repeated nature and length of his absences during a short period of service.  

4.  Accordingly, there appears to be no basis for granting the applicant an upgrade of his discharge to 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)                                         AR20130009359





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ABCMR Record of Proceedings (cont)                                         AR20130009359



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