IN THE CASE OF:	  

		BOARD DATE:  6 March 2014

		DOCKET NUMBER:  AR20130011859 


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 honorable.

2.  The applicant states he was a model Soldier up until the point that his wife had a child with another man.  He contends he was very young and did not know how to handle the situation.  He also states that his dream was to be a career Soldier and he really liked the Army.  His love for the Army did not rate the discharge he received.  At this point in his life he does not want to die with an undesirable discharge on his record.

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 enlisted in the Regular Army with a moral waiver in Raleigh, North Carolina, on 10 May 1972 for a period of 3 years.  He was single at the time he enlisted.  He completed basic training at Fort Dix, New Jersey, and advanced individual training at Fort Benjamin Harrison, Indiana, before being transferred to Korea on 22 October 1972.

3.  He completed his tour in Korea on 7 November 1973 and was transferred to Arlington Hall Station in Arlington, Virginia.  He was transferred to Fort Bragg, North Carolina, on 2 July 1974.

4.  On 5 January 1975, he was honorably discharged for the purpose of immediate reenlistment.  On 6 January 1975, he reenlisted for a period of 3 years and assignment to Fort Eustis, Virginia.  He was married at the time of his reenlistment.

5.  On 20 February 1975, he was transferred to Fort Eustis, Virginia.  On 31 May 1975, he was absent without leave (AWOL) and remained absent in desertion until he was returned to military control at Fort Bragg on 5 September 1975 where charges were preferred against him for the absence.

6.  On 16 September 1975 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.  In his request, 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 also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  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.

7.  He elected to submit a statement in his own behalf wherein he asserted that while in Korea his wife had a miscarriage that led to a nervous breakdown and his request for a compassionate reassignment was denied.  He also stated that after he left Korea he seemed to always be in trouble and while at Arlington Hall Station he received nonjudicial punishment three times.  He also states that while at Fort Bragg his platoon sergeant showed no interest in his problems and his wife had another miscarriage.  His commander did not inform him of his wife's miscarriage.  He requested a discharge but only received a bar to reenlistment.  He concluded that no one cared about him and he wanted to get out of the Army so he could take care of his family himself.

8.  On 29 October 1975, the appropriate authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate. 

9.  On 10 December 1975, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 3 years, 1 month, and 24 days of active service and had 97 days of lost time due to AWOL.
 
10.  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.

11.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 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 with no indication of any violations of the applicant's rights.  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, 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.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the length of his absence and his otherwise undistinguished record of service.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130011859



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ABCMR Record of Proceedings (cont)                                         AR20130011859



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