BOARD DATE: 11 March 2014
DOCKET NUMBER: AR20130012618
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 his undesirable discharge (UD) be upgraded to an honorable discharge.
2. The applicant states his situation was not completely investigated. He has worked to improve himself, his life, and honor. He is still proud to have served and currently has a daughter on active duty in the Navy.
3. The applicant provides no supporting documentation.
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 parental consent, at age 17 on 21 August 1972. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. On 23 January 1974, a special court-martial found the applicant guilty of being absent without leave (AWOL) from 15 August through 18 November 1973 and breaking restriction.
4. He served in military confinement from 14 December 1973 through 11 March 1974.
5. On 2 April 1974, he received nonjudicial punishment (NJP) for failure to go to his place of duty.
6. The applicant was AWOL again from 29 April through 20 June 1974. Upon return to military control court-martial charges were preferred against him.
7. On 2 July 1974, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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 acknowledged that he was guilty of the charges or of lesser-included charges that if the request was accepted could lead to him receiving UD Certificate. He also acknowledged that he understood such a discharge would deprive him of many or all of benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.
8. The separation authority approved the request for discharge and directed the applicant's reduction to the lowest enlisted grade and the issuance of a UD.
9. The applicant was discharged with a UD on 16 August 1974. He completed 1 year, 4 months, and 3 days of creditable service with 150 days of lost time.
10. The Army Discharge Review Board reviewed and denied the applicant's request for an upgrade of his discharge on 29 February 1975 and 27 May 1990.
11. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.
a. Paragraph 3-7a provided that an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.
b. Paragraph 3-7b provided that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
c. Chapter 10 provided 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 the charges have been preferred. A UD was normally considered appropriate under chapter 10.
DISCUSSION AND CONCLUSIONS:
1. The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the offense for which he requested discharge and is appropriate for the applicant's overall record of military.
2. While it is commendable that his daughter is serving on active duty and that he supports her in this effort, this fact has no direct bearing on his own conduct while on active duty and does not mitigate his misconduct.
3. The applicant's limited creditable service is devoid of any factors that would mitigate his two periods of AWOL and his NJP. There is insufficient evidence to warrant an upgrade of his UD.
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) AR20130012618
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