IN THE CASE OF: 

		BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130009369 


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 that his undesirable discharge (UD) be upgraded to an honorable or general discharge.

2.  The applicant states, in effect, that he did not contest the discharge at the time because he was told that it would be upgraded after 6 months.  Additionally, he had a drug problem and the government provided no assistance and the "CiA" threatened annihilation. 

3.  The applicant provides an almost illegible application and letter explaining his request.

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 in Knoxville, Tennessee on 13 October 1970.  He completed basic training at Fort Campbell, Kentucky and advanced individual training as a postal clerk at Fort Leonard Wood, Missouri before being transferred to Germany on 23 March 1971 for assignment to a Postal Detachment. 

3.  On 21 September 1971, while performing the duties of a postal clerk, charges were preferred against the applicant for the theft of mail matter.

4.  The facts and circumstances surrounding his discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Nashville, Tennessee in 1984.  However, his records do contain a duly-authenticated DD Form 214 which shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 22 December 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with an Undesirable Discharge Certificate.  He completed 1 year, 2 months, and 10 days of active service.

5.  On 5 October 1972, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He was granted a personal appearance before that Board on 11 March 1974 and he declined to appear.  The results of his application are not present in the available records; however, it is reasonable to presume that the ADRB denied his request as there is no evidence indicating that his discharge was upgraded.

6.  The applicant is presently incarcerated and in the custody of the Tennessee Department of Corrections.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  Under today’s standards an individual must admit guilt to the charges or a lesser offense that would result in a punitive discharge/felony conviction.  An undesirable discharge was 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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for discharge 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 have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of the charges against him during such a short period of service. His service simply did not rise to the level of a general discharge or an honorable discharge.

4.  Additionally, there was not then and there is not now any provisions for an automatic upgrade of such a discharge.

5.  Accordingly, there appears to be no basis for granting the applicant's request for an upgrade of 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)                                         AR20130009369



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ABCMR Record of Proceedings (cont)                                         AR20130009369



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