IN THE CASE OF:	   

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130009848 


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:

* after his return from overseas service, he experienced difficult family problems (divorce, birth of son)
* he reenlisted to stay at Fort Eustis, VA; upon his return from leave, his orders were changed to Okinawa
* he was given a 30-day delay in his departure and when this period expired, he remained home trying to deal with the family problems
* he was under too much stress and did not understand what a chapter 13 meant or what the implications were
* after discharge, he straightened up his life and he now realizes that he may have made some poor decisions but he believes his characterization of service is too harsh

3.  The applicant does not provide any evidence.

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's records show he enlisted in the Regular Army (RA) on 30 November 1970 and he held military occupational specialty 76P (Equipment Storage Specialist).  He also executed a 12-month extension in the RA on 9 December 1970. 

3.  He was assigned to the 573rd Transportation Company, Fort Eustis, VA.  He also served in Okinawa in a temporary duty status from 13 June 1971 to 14 September 1971. 

4.  He was honorably discharged on 25 October 1971 for the purpose of immediate reenlistment in the RA.  

5.  He reenlisted in the RA on 26 October 1971.  His reenlistment option was "Present Duty Assignment."  He was assigned to Fort Eustis, VA.

6.  On 27 October 1971, he was issued assignment instructions to go on a permanent change of station (PCS) move overseas.  He was ordered to report to the U.S. Army Overseas Replacement Station, Oakland Army Base, CA, on or about 27 November 1971.  He was authorized 30 days of delay enroute.  

7.  On 6 December 1971, he departed his unit in an absent without leave (AWOL) status.  He returned to military control on 2 March 1972.  

8.  On 3 March 1972, court-martial charges were preferred against him for one specification of AWOL from 6 December 1971 to 2 March 1972. 

9.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge he indicated:
* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement on his own behalf

10.  In his personal statement, he stated: 

* he enlisted in the RA to avoid being drafted but as soon as he was in advanced individual training, the Army started messing with him
* his wife was pregnant and he asked for a pass to go see her at the hospital but he was denied 
* he began experiencing trouble and as soon as he was able to stand on his feet, the Army decided to send him to Okinawa
* while overseas, his wife filed for divorce and when he got back, he went to see her to stop the divorce
* the Army said he would not have to go overseas for a year; so, he reenlisted for present duty assignment
* one week later, the Army decided to send him overseas - Okinawa, and that is when he went ahead with the divorce
* he may have lost his wife but he did not want to lose his son; so, he went back home and he was authorized a 30-day delay
* he overstayed his leave and decided to stay AWOL but the police got him for a driver's license issue and found out he was AWOL
* they gave him an airline ticket and instructed him to report to the overseas replacement but he went AWOL again
* he went to Oregon where he was convicted of theft and he was sentenced to 30 days in jail
* upon return to military control, he asked the commander to give him a chapter 10

11.  The applicant's battalion commander recommended approval of the discharge action and stated the applicant's behavior pattern rendered him unsuitable for further military service.  He recommended an undesirable discharge. 

12.  On 15 March 1972, the separation authority approved the discharge action and ordered the applicant reduced to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.   Accordingly, the applicant was discharged on 16 March 1972.  

13.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  His DD Form 214 shows he completed 
11 months and 27 days of active service and he had lost time from 27 November 1971 to 16 March 1972. 

14.  On 28 September 1981, the Army Discharge Review Board (ADRB) reviewed his discharge but found it equitable and proper.  Accordingly, the ADRB denied his petition for an upgrade of his discharge.

15.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ 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 voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  The applicant was issued PCS orders on 27 October 1971.  This is the date the order was published.  This is not the date the assignment was issued by his assignment officials.  The assignment instructions would have been done prior to this date.  It is reasonable to presume at the time the assignment instructions were issued his assignment officials were not aware of his reenlistment on 
26 October 1971.  Likewise, his reenlistment was a process that also started before 26 October 1971.  It is possible his reenlistment option was not transmitted to his assignment official in a timely manner.

4.  Despite the conflict in his reassignments orders and reenlistment option, going AWOL was not the proper way to address the issue.  There would have been several other legitimate avenues to address this conflict had the applicant elected to use them.  Nothing in the applicant's records shows he was forced to choose the discharge.  He was AWOL by choice.  After consulting with counsel, he clearly stated he was aware of the implications of his decision and that he had not been coerced.  He could have elected a trial by a court-martial if he felt he was innocent of the charges or if he had extenuating circumstances as he now describes. 

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130009848





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ABCMR Record of Proceedings (cont)                                         AR20130009848



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