BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130013411 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states he has been involved with the Department of Veterans Affairs (VA) for 17 years and nowhere does it state that he was dishonorably discharged.

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 (RA) on 29 August 1967 for a period of 2 years.  He was awarded military occupational specialty 83F (Offset Pressman).

3.  He served in Vietnam from 1 May 1968 through 4 September 1968.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows his periods of lost time (i.e., absent without leave (AWOL) and confinement (CONF)), as follows:

* AWOL – 13 days (23 January-4 February 1968)
* AWOL – 30 days (25 March-23 April 1969)
* CONF – 21 days (24 April-14 May 1969)
* AWOL – 26 days (5-25 June 1969)
* CONF – 5 days (26-30 June 1969)
* AWOL – 9 days (1-9 July 1969)
* AWOL – 6 days (29 October-4 November 1969)
* AWOL – 12 days (6-17 November 1969)
* AWOL – 19 days (3-22 January 1970)

5.  His DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Convictions) shows he was convicted by a:

* summary court-martial of being AWOL – 25 March-24 April 1969
* special court-martial of being AWOL –

* 5-June 1969
* 1-10 July 1969

6.  Court-martial charges were preferred against the applicant for being AWOL from 3 January to 8 October 1970.

7.  The applicant consulted with legal counsel and was informed that he was pending trial by court-martial for violation of Article 86 (AWOL), Uniform Code of Military Justice (UCMJ), which could lead to a bad conduct or dishonorable discharge.  He was advised of the rights available to him and the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He stated he was not subjected to coercion with respect to his request for discharge.

	b.  He acknowledged that trial by court-martial could lead to a bad conduct or dishonorable discharge.

	c.  He was advised that he might be discharged under conditions other than honorable, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were given a discharge under other than honorable conditions (undesirable).

	d.  He was also advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	e.  The applicant and his counsel placed their signatures on the document.

8.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an Undesirable Discharge Certificate.

9.  The separation authority approved the applicant's request for discharge and directed his separation with an undesirable discharge (under other than honorable conditions).  The applicant was discharged accordingly on 27 November 1970.

10.  On an unspecified date, the applicant submitted a request for review of his discharge under the Department of Defense (DOD), Discharge Review Program (Special) (SDRP).  On 23 June 1978, the board indicated the applicant met the primary criteria of satisfactory active military service for 24 months prior to discharge.  It also determined the applicant's record of service was not sufficiently meritorious to warrant an honorable discharge.  However, the board voted to change his character of service to general under honorable conditions.

11.  The applicant was reissued a DD Form 214 (Report of Separation from Active Duty) that shows he entered active duty on 29 August 1967 and was discharged for the good of the service in lieu of trial by court-martial on 27 November 1970 under the provisions of Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), chapter 10, and the DOD SDRP with his service characterized as under honorable conditions.

	a.  He completed 2 years, 10 months, and 11 days of net active service during this period.

	b.  Item 27 (Remarks) shows he had 141 days of lost time under Title 10, U.S. Code, section 972.

12.  On an unspecified date, the applicant submitted a request to the Army Discharge Review Board (ADRB) for upgrade of his discharge.  On 28 December 1978, the ADRB found the applicant's discharge was erroneously upgraded under the SDRP for 24 months of satisfactory active military service.  The board found nothing in mitigation or extenuation upon which to upgrade the character of service and voted unanimously not to affirm the applicant's upgrade under the DOD SDRP because he was discharged at his own request while pending trial for a lengthy period of AWOL.  Accordingly, the ADRB denied his request.

13.  On 15 January 1979, the applicant was issued a DD Form 215 (Correction to DD Form 214) that shows his discharge was reviewed under the provisions of Public Law 95-126 and a determination was made that the characterization of service was warranted under the provisions of the DOD SDRP, dated 4 April 1977.

14.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant acknowledged he was pending trial by court-martial for violation of Article 86 (AWOL), UCMJ, which could lead to a bad conduct or dishonorable discharge.  At that time, he elected to request discharge in lieu of trial by court-martial.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and his rights were fully protected throughout the separation process.

	a.  His discharge was reviewed under the DOD SDRP and upgraded to general under honorable conditions.

	b.  The ADRB reviewed the action taken by the DOD SDRP and found the applicant's discharge was erroneously upgraded under the DOD SDRP for 24 months of satisfactory active military service.  The ADRB found nothing in mitigation or extenuation upon which to upgrade the applicant's character of service.  

	c.  Considering all the facts of the case, the reason for his separation and the characterization of his service were appropriate and equitable.

3.  During the period of service under review, the applicant had 141 days of lost time and he was convicted by a summary court-martial and a special court-martial.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge or affirmation of his discharge as upgraded by the DOD SDRP.

4.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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 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)                                         AR20130013411



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ABCMR Record of Proceedings (cont)                                         AR20130013411



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