IN THE CASE OF:	  

		BOARD DATE:	 20 February 2014 

		DOCKET NUMBER:  AR20130010562 


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 be upgraded to a more favorable discharge. 

2.  The applicant states, in effect, that he was under the influence of three different drugs at the time.  He goes on to state that he did well during training but then he lost his focus on why he was there.  He continues by stating that he was discharged because of his attitude and rightfully so.  He further states that after he served he got into trouble with the law over drugs and served 3 years; but after he got out he changed and he has lived a model life since 1978.  In 1987, the State of South Carolina gave him a complete pardon.  He also states that he has lived trouble free since then and his biggest regret is the way he acted in the Army and he is willing to do anything to clear his military record.

3.  The applicant provides a four-page letter explaining his application, his
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and his Certificate of Pardon. 

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 into the Army of the United States on 8 June 1970.  He completed his one-station unit training as a light weapons infantryman at Fort Jackson, SC and he was transferred to Fort Benning, GA to undergo airborne training.

3.  On 20 November 1970, while still at Fort Benning, nonjudicial punishment (NJP) was imposed against him for being absent without leave from 
16 to 18 November 1970.

4.  On 24 November 1970, NJP was imposed against him for avoiding work in the mess hall by making a false sick slip.

5.  The applicant completed airborne training and received orders transferring him to Vietnam.  His orders directed him to report to the overseas replacement station at Fort Dix, NJ on 18 December 1970.

6.  The applicant failed to report as ordered and was reported as being AWOL on 18 December 1970.  He remained absent in a desertion status until he was returned to military control at Fort Gordon, GA on 13 March 1971.  

7.  On 12 April 1971, he was convicted by a special court-martial of being AWOL from 18 December 1970 to 13 March 1971.

8.  The applicant was transferred to Fort Jackson and again began a series of absences.  He went AWOL from 10 to 16 June 1971, 1 July to 10 August 1971 and 27 August to 18 October 1971.  Charges were preferred against the applicant on 18 October 1971.

9.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also declined the opportunity to submit a statement in his own behalf.
10.  The appropriate authority (a major general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

11.  Accordingly, on 11 November 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 10 months and 9 days of active service and had 205 days of lost time due to AWOL and confinement.  

12.  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.

13.  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.

	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.  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 or mitigating circumstances before a trial by court-martial, he voluntarily requested a 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 repeated and extensive length of his absences and the lack of mitigating circumstances presented at the time. His service simply did not rise to the level of a general discharge or an honorable discharge.

4.  Accordingly, there appears to be no valid basis to approve his request for an upgrade 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)                                         AR20130010562



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ABCMR Record of Proceedings (cont)                                         AR20130010562



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