IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20130012276 


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 under other than honorable conditions discharge.

2.  The applicant states that a master sergeant kicked him out of the Army for no reason.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a detailed account of the events that led up to his discharge.

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 23 October 1970.  He completed his initial training and was awarded military occupational specialty (MOS) 16F (Light Air Defense Artillery Crewman).

3.  On 18 November 1971, he was charged with being absent without leave (AWOL) from 13 April -12 October 1971 (171 days).

4.  On 19 October 1971, he consulted with counsel and he voluntarily 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.

5.  He indicated he understood that if his request were accepted, he could be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

6.  He elected to submit statements in his own behalf.  In these statements the applicant indicated that he went AWOL because he was trying to get custody of his daughter from his former wife.  The former wife had been mistreating the child and had left her with dope heads for weeks.  Further, he was experiencing serious financial problems and his current wife needed his support.  He wanted a discharge to get his daughter and to pay bills.  In the event that he did not get a discharge he would go AWOL again to help his family, wife, and child.

7.  The available evidence shows his chain of command recommended he be discharged for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge.

8.  On 22 November 1971, the appropriate authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of an undesirable discharge, and reduction to pay grade E-1.

9.  On 24 November 1971, he was discharged accordingly.  His DD Form 214 shows he completed 7 months and 14 days of total active service with lost time for the period 13 April - 27 December 1971 (171 days).

10.  The applicant provides a statement in which he contends that prior to going AWOL he was a stellar Soldier and almost died twice while participating in his basic training.  He was looking forward to going to Vietnam but instead he was assigned to Fort Campbell.  His job was to keep the Supply area clean.  It was during this time that his MSG approached him very upset about the fact that he was being forced to retire in 6 months.  The MSG began to scream at him and it appeared that he was going to hit him so he raised his arms to his chest in order to defend himself.  This made the MSG even angrier so he told the applicant to get off the base and if he caught him on the base he would put him in jail for 
2 years for striking a noncommissioned officer.  So the applicant left and went home.  It was his word against the MSG and he knew he would lose.  He turned himself in after 171 days only to find that there was no record of him being AWOL.  He was told to go home and come back in 10 days.  When he returned he was given a job driving a truck.  Later, his commander approached him and told him that the Army had a new law and that all he had to do was sign a paper and he could go home.  He signed the blank paper on the bottom and waited in a room for his papers.  He became very upset when he found out he would receive an under other than honorable conditions discharge.  The military police put him in jail for 3 days.  The Army took him to the road and kicked him out.  He had never been so hurt in all his life.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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 under the UCMJ 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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

	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 requests upgrade of his discharge under other than honorable conditions.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  The applicant contends he was kicked out of the Army by his noncommissioned officer; however, he submitted two statements with his request for discharge in which he stated that he wanted out of the Army in order to care for his family and financial problems.  Further, he stated that if he was not given a discharge he would go AWOL again.  At no time did he mention that he was forced to go AWOL by his noncommissioned officer and he did not provide any evidence, nor does the record contain evidence to support his contention.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20130012276





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012276



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1