IN THE CASE OF:

		BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130009389 


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 at least a general discharge with entitlement to full benefits.

2.  The applicant states he completed almost 2 years of service and feels it was an injustice the way he was discharged because he was young and did not understand what was happening.  In private life, he realized that he had bad influences in the Army and was given bad advice.  However, he has used the knowledge he gained in the service through his life and believes he deserves a second chance. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 5 May 1971 for a period of       2 years.  He completed basic training at Fort Ord, California and advanced individual training as a field artillery crewman at Fort Sill, Oklahoma before being transferred to Fort Hood, Texas for his first and only duty assignment.

3.  On 21 August 1972, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 16 July to 3 August 1972. 

4.  He again went AWOL from 12 January to 16 January 1973.  His record is silent as to any punishment imposed for that absence.

5.  On 13 March 1973, NJP was imposed against him for being AWOL from 
1 February to 11 February 1973.

6.  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 Los Angeles, California in 1978.  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 30 March 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 1 year, 9 months, and 20 days of active service.  

7.  He also acknowledged that he had been briefed on the procedures for applying to the Army Discharge Review Board for an upgrade of his discharge.  However, there is no evidence in the available records to show that he applied to that board within its 15-year statute of limitations.

8.  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.  An undesirable discharge was considered appropriate at the time.  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 have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service during such a short period of service.  His service simply did not rise to the level of a general discharge.

4.  Additionally, the Board does not upgrade discharges solely for the purpose of qualifying individuals for benefits. 

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)                                         AR20130009389





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ABCMR Record of Proceedings (cont)                                         AR20130009389



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