IN THE CASE OF:	  

		BOARD DATE:  20 March 2014

		DOCKET NUMBER:  AR20130013434 


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 that his undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he suffered a nervous breakdown in 1967 while at Fort Irwin, California and was hospitalized several times.  He goes on to state that he asked for rehabilitation in order to serve out the rest of his time but was discharged instead.  He also states that he has applied for upgrades of his discharge several times and has never received any response. 

3.  The applicant provides a one-page letter explaining his application, a copy of his Undesirable Discharge Certificate and his DD Form 214 (Armed Forces of the United States Report of Transfer or 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 enlisted in the Regular Army in Jacksonville, Florida on 10 April 1967 for a period of 3 years and training as a field wireman.  He completed his basic training at Fort Benning, Georgia and his advanced individual training at Fort Polk, Louisiana and was transferred to Fort Irwin, California for his first and only duty assignment.

3.  On 2 January 1968, he went absent without leave (AWOL) and remained absent in desertion until he was returned to military control at Fort Jackson, South Carolina on 13 April 1968, where charges were preferred against him for the absence. 

4.  On 26 April 1968 he was convicted by a special court-martial of being AWOL from 2 January to 12 April 1968.  He was sentenced to confinement at hard labor for 6 months (suspended for 6 months), reduction to the pay grade of E-1 and a forfeiture of $68.00 pay per month for 6 months.

5.  On 4 May 1968 he again went AWOL and remained absent in desertion until he was again returned to military control at Fort Jackson on 19 December 1968.

6.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Jacksonville, Florida in June 1969.  However, his records do contain a duly authenticated DD Form 214 which shows that he was discharged under other than honorable conditions on 13 March 1969 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 11 months and 19 days of active service and had 350 days of lost time due to AWOL and confinement.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in part, 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 charges have been preferred.    Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  

3.  The applicant's contentions are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence during such a short period of service.  His service simply did not rise to the level expected of a Soldier.

4.  Accordingly, there appears to be no basis for granting the applicant an honorable or a general discharge.

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)                                         AR20130013434





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ABCMR Record of Proceedings (cont)                                         AR20130013434



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