BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130010686 


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 to a more favorable discharge.

2.  The applicant states he regrets any unfortunate circumstances that led to his discharge and any and all consideration is appreciated.

3.  The applicant provides no additional 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, though somewhat incomplete, show he enlisted in the Regular Army on 14 June 1972 for a period of 3 years, training as a quartermaster light equipment repairman, and assignment to Europe.  He indicated he was single at the time of his enlistment.

3.  He completed basic training at Fort Jackson, South Carolina, and advanced individual training at Aberdeen Proving Ground, Maryland, before being transferred to Germany on 15 November 1972.

4.  On 17 January 1973, nonjudicial punishment was imposed against the applicant for failing to go to his place of duty.  His records also show he was absent without leave (AWOL) from 3 to 5 April 1973.

5.  On 13 June 1973, he was convicted by a special court-martial of being AWOL from 23 to 30 April 1973 and 1 to 14 May 1973.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $50.00 pay for 3 months, and reduction to pay grade E-1.

6.  His records also indicate he was AWOL from 15 to 25 May 1973; his records are silent as to the punishment imposed for that offense.

7.  He was initially imprisoned at Mannheim, Germany, and was then transferred to the Army Retraining Brigade at Fort Riley, Kansas, on 21 July 1973.

8.  On 2 October 1973, he was transferred to Fort Lewis, Washington.  On 15 October 1973, he was reported as being AWOL until his return on 16 October 1973.  He again was AWOL on 26 October 1973 and remained absent until he was apprehended by civil authorities in Fürth, Germany, on 27 December 1973 and was returned to military control.  He returned to Fort Lewis where charges were preferred against him for the absences.

9.  On 29 January 1974 after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and 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 he might be deprived of all benefits as a result of such a discharge.

10.  He also elected to submit a statement in his own behalf in which he asserted that his discharge should be approved because he had spent most of his time in the Army incarcerated.  He was angry with the Army because they kept him away from his family in West Germany.  He stated that nonjudicial punishment had been imposed against him on eight occasions and he had been court-martialed once for being AWOL.  Given his attitude toward the Army, it would serve all concerned to discharge him.

11.  The appropriate authority (a brigadier general) approved his request for discharge on 1 March 1974 and directed the issuance of an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under the provisions of Army Regulation 635-200, chapter 10, on 6 March 1974 in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 1 year, 10 months, and 24 days of active service and accrued 179 days of lost time due to AWOL and confinement.

13.  A review of his official records failed to show any indication that he had married.

14.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

15.  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 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 nature of his absences, the lack of sufficient mitigating circumstances presented at the time, and his overall undistinguished record of service.  His service simply did not rise to the level of an honorable or a general discharge.

4.  Accordingly, there appears to be no valid basis to approve his 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 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)                                         AR20130010686



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ABCMR Record of Proceedings (cont)                                         AR20130010686



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