IN THE CASE OF:	  

		BOARD DATE:  20 March 2014

		DOCKET NUMBER:  AR20130012791 


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.

2.  The applicant states he feels his discharge was inequitable because it was based on one isolated incident in 24 months.  He went absent without leave (AWOL) because his mother needed medical attention.  Once he helped his mother, he returned to post.  He has no paperwork to submit because he is a homeless veteran.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 on 24 June 1974 and he held military occupational specialty 75C (personnel management specialist).  He was advanced to pay grade E-3 on 18 October 1974.

3.  On 31 March 1975, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 7 to 11 March 1975; as a result, he was reduced to pay grade E-2.

4.  He was again advanced to pay grade E-3 on 16 June 1975.

5.  On 19 March 1976, he again accepted NJP under Article 15, UCMJ, for being AWOL from 8 to 20 January 1976; as a result, he was again reduced to pay grade E-2.

6.  On 22 June 1976, a DD Form 458 (Charge Sheet) was completed by the Commander, 101st Adjutant General Company, 101st Airborne Division, Fort Campbell, KY.  The applicant was charged with one specification of being AWOL from 17 May through 21 June 1976.

7.  On 29 June 1976, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trail by court-martial.  He acknowledged he could be discharge under other than honorable conditions, furnished an Undesirable Discharge Certificate, and the results of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.    

8.  In his statement, the applicant stated that during his time in the Army he had been a good trooper and did his job as best he could.  He had requested to be discharged several times, but was refused.  That was the reason he went AWOL.  He felt he had done a better job than undesirable.  That would have never happened had the commanding officer released him out of the Army.

9.  On 1 July 1976, the separation authority approved the applicant’s request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an undesirable discharge and reduction to pay grade E-1.  

10.  He was discharged accordingly in pay grade E-1 on 15 July 1976.  He completed 1 year, 6 months, and 24 days of net active service and 51 days of time lost.

11.  On 11 June 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge.
12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - a honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  He stated that several times he had requested to be discharged, but was refused, so he went AWOL.

2.  While the Board is sympathetic of his request, he did not provide sufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.
3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief.

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)                                         AR20130012791





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ABCMR Record of Proceedings (cont)                                         AR20130012791



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