BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130012969 


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 general discharge to an honorable discharge.

2.  The applicant states he went home from Germany on emergency leave because his father had a heart attack.  While at home his son died.  He applied for a hardship discharge and was told to return to Germany.  He returned on his own and surrendered at Fort Chaffee, AR; he was then sent to Fort Campbell, KY.  He was told that he could apply to have his character of service upgraded 6 months after the date of discharge.  

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 on 6 March 1974 and he held military occupational specialty 13B (field artillery crewman).  He was promoted to pay grade E-4 on 6 October 1975.  He served in Germany from 5 November 1974 through on or about September 1975.  

3.  He was reported absent without leave (AWOL) on 24 September 1975 and was dropped from the rolls of his organization on 9 December 1975.  He surrendered to military authorities on 30 December 1975.

4.  On 8 January 1976, court-martial charges were preferred against him.

5.  On 8 January 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 discharged 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.    

6.  In his statement, the applicant stated that he understood what the chapter 10 could mean to all of his benefits.  He also felt he could make a better life for himself outside the Army with his present problems.  His father being very sick and his wife divorcing him were part of the reason he went AWOL.  But, the main reason was he had tried all of the possible legal ways he knew and received no help from the Army to get the problem solved.  So, he went AWOL and now the only way to solve the problem was to get out of the Army.

7.  On 8 April 1976, the Administrative Officer, U.S. Army Personnel Control Facility, Fort Campbell, KY, recommended the applicant's security clearance be revoked.  He stated the applicant departed AWOL on 24 September 1975 and he returned to military control on 30 December 1975.  The applicant was pending a possible special court-martial.

8.  On 13 April 1976, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Campbell, KY.  The applicant was charged with one specification of being AWOL from 24 September through 30 December 1975.

9.  On 21 April 1976, the applicant’s company and battalion commanders recommended approval of the applicant’s discharge for the good of the service with the issuance of an undesirable discharge.  

10.  On 27 April 1976, the separation authority approved the applicant’s request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of a General Discharge Certificate.  

11.  He was discharged accordingly in pay grade E-4 on 30 June 1976.  He completed 2 years and 1 day of net active service and had 116 days of time lost. 

12.  His record his void of any evidence showing he requested a hardship discharge and it was processed, disapproved, or approved during his period of service.  

13.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

14.  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. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was subject to being charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  
2.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 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.  

3.  It appears that based on his overall record it was directed that he receive a general discharge with no reduction in rank instead of an undesirable discharge with reduction to pay grade E-1.

4.  He provided no 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.  There is no evidence he requested a hardship discharge during his period of service and the request was processed, disapproved, or approved.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief.  

6.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.

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)                                         AR20130012969



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ABCMR Record of Proceedings (cont)                                         AR20130012969



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