BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009538 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that during basic combat training (BCT) he was stung by a bee and experienced a substantial reaction that required medical attention.  The doctor at the Fort Ord hospital told him he was not eligible to remain in the Army because of the severity of the allergic reaction.

   a.  Despite the doctor's assessment, he completed BCT and was reassigned to Fort Carson, CO.  He informed his superiors about his medical situation and was told to continue his duties until the separation paperwork was processed.

   b.  He also told his superiors he wasn't supposed to be "downrange" due to his medical situation.  As a result, he was singled-out and received unfair treatment because it was thought that he was trying to get out of duty.

   c.  While he was on leave (from 4 to 10 October 1974) he was stung by a bee and had to go to the emergency room at Castle Air Force Base, Merced, CA. This delayed him from returning to his unit and, as a result, he was reported absent without leave (AWOL).

   d.  Upon returning to his unit, he requested a transfer to another unit, but his request was denied.  Afterwards, he was continually sent to the field.  His parents contacted their congressman concerning the applicant's unfair treatment and an investigation was initiated.  The applicant couldn't endure the unfair treatment coming from his platoon sergeant and platoon leader, so he went AWOL.

   e.  His parents told him to report to the Presidio of San Francisco (PSF), CA, to meet with military authorities and his congressman to resolve matters.  He reported to Fort Ord, CA, and informed military authorities of the meeting. However, instead transporting him to the PSF, he was sent to the Personnel Control Facility and reduced to grade E-1. 

   f.  After a few days he was offered the option of either an administrative discharge or a court-martial.  He accepted the discharge and he returned home in November 1975.

   g.  In October 1981, he attempted to reenter the Army on the basis that he was unjustly discharged.  He was able to get his reenlistment eligibility (RE) code changed from RE-4 to RE-3 and he was granted a waiver to reenlist in the Army. However, he decided not to renter the Army because he was married, he had a child on the way, and he had obtained a job with the State of Washington.

   h.  He concludes that his discharge was unjust due to the unfair treatment he received and the fact that military authorities at Fort Ord failed to contact military authorities at the PSF and understand the circumstances surrounding his situation.  He adds, "this unfair treatment was also the case in the other 'time lost' with the exception of the last 64 days."

3.  The applicant provides a copy of a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) and U.S. Army Enlistment Eligibility Activity (USAEEA), St. Louis, MO, letter, dated 27 October 1981.

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 (RA) on 21 August 1973 for a period of 3 years.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He was assigned to Company B, 1st Battalion, 10th Infantry, Fort Carson, CO, on 20 December 1973.  He was advanced to private first class/pay grade E-3 on 16 April 1974.

4.  He accepted nonjudicial punishment (NJP) for:

* being AWOL from 1 to 5 October 1974
* being AWOL from 13 to 17 December 1974
* wrongfully possessing one ounce of marijuana on 22 January 1975
* being AWOL from 24 to 25 March 1975

5.  On 18 September 1975, court-martial charges were preferred against the applicant for being AWOL from 11 July 1975 to 17 September 1975.

6.  On 18 September 1975, the applicant consulted with legal counsel and he was informed that he was pending trial by court-martial for violation of Article 86 (AWOL), Uniform Code of Military Justice (UCMJ).  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of court-martial.  He was also advised not to make a hasty decision on his request.  The applicant and his counsel placed their signatures on the document.

7.  On 24 September 1975, the applicant again consulted with legal counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

   a.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given an under other than honorable conditions discharge.

	b.  He was also advised that he could submit any statements he desired in his own behalf.

	c.  The applicant and his counsel placed their signatures on the document.

   d.  The applicant submitted a statement in his own behalf.  He acknowledged that he had six Articles 15, UCMJ.  He stated, "I entered the Army for a job and something to keep me busy.  I thought I would like it, but apparently not.  Every [sic] since I've been in, I've had nothing but trouble.  I feel that I am no benefit to the service in any way.  I realize that I will lose my Education Benefits, Unemployment Compensation and also Burial Expenses.  I am ready to lose all Benefits to release me from the service.  I have lost all interest in the Army and if I'm returned to duty I will do everything possible to try to get out of the Army.  I fully understand an Undesirable Discharge and I am willing to accept a Bad Discharge."

8.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.

9.  The separation authority approved the applicant's request for discharge and directed separation with an undesirable (under other than honorable conditions) discharge.

10.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he entered active duty this period on 21 August 1973 and he was discharged on 13 November 1975 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.
 
   a.  He completed 2 years and 10 days of net active service this period.

   b.  Item 27 (Remarks) show he had 73 days lost under Title 10, U.S. Code, section 972.

   c.  Item 10 (Reenlistment Code) shows "RE-4."

11.  A review of the applicant's military records failed to show any evidence that he was diagnosed with or that he was being processed for separation based on an unfitting medical condition.

12.  On 29 April 1976, the applicant submitted an application to the Army Discharge Review Board (ADRB) requesting upgrade of his discharge based on medical reasons.  On 3 May 1977, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request for upgrade of his discharge was denied.

13.  On 20 September 1981, the applicant submitted a request to the USAEEA for a change to his RE code in order to reenlist in the RA.

14.  A DD Form 215, issued on 21 October 1981, corrected the applicant's 
RE code to "RE-3, RE-3B, RE-3C."

15.  On 27 October 1981, the Commander, USAEEA, notified the applicant that the corrected RE code allows him to be considered for a waiver of his disqualifications (i.e., last discharge, time lost, and the Army's grade and service criterion) prior to enlistment in the RA.

16.  A review of the applicant's military service records failed to show any evidence that he reenlisted in the RA.

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

	a.  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.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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 applicant contends that his discharge under other than honorable conditions should be upgraded to a general, under honorable conditions discharge because he was told he would be discharged due to medical reasons, but he was not and he was subsequently treated unfairly by his superiors, which caused him to go AWOL.

2.  There is no evidence of record and the applicant provides insufficient evidence to show he was diagnosed with a medical condition that was unfitting for further military service.

3.  There is also no evidence of record that shows the applicant was treated unfairly by military superiors.  In this regard, it is noted that in the applicant's statement accompanying his request for discharge, he made no mention of any unfair treatment by military personnel.  However, he did acknowledge that he had "nothing but trouble" and had "lost all interest in the Army."

4.  The evidence of record shows the applicant was charged with being AWOL, he acknowledged being AWOL from 11 July through 16 September 1975, and he elected to request discharge in lieu of being court-martialed.

5.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

6.  During the period of service under review, the applicant received NJP on at least four occasions, he had four separate periods of AWOL, he had 73 days of time lost, and he completed only about 2 years of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general, under honorable conditions discharge.  

7.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

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)                                         AR20130009538



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ABCMR Record of Proceedings (cont)                                         AR20130009538



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