IN THE CASE OF:	  

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130013527 


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 discharge be upgraded to honorable.

2.  The applicant states lots of people who were drafted were given an honorable discharge.  Some left the country and others like him went absent without leave (AWOL).  He was diagnosed with schizophrenia affective disorder and major depression and he had these conditions at the time he was drafted.  

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 was inducted into the Army of the United States on 25 February 1969 and he held military occupational specialty 76P (Stock Control and Accounting Specialist).  He was subsequently assigned to Fort Leonard Wood, MO, and in June 1969, he was placed on orders for the Overseas Replacement Station, Oakland, CA, for assignment to Vietnam.

3.  On 1 July 1969, he was reported AWOL from his assigned unit and on 22 October 1969, he was dropped from the rolls as a deserter.  

4.  On 9 April 1972, he was apprehended and returned to military control at Fort Leonard Wood.  He was assigned to the Personnel Control Facility, Fort Leonard Wood.

5.  His records contain a Standard Form 88 (Report of Medical Examination), dated 12 April 1972, wherein it shows the examining physician found the applicant had no mental or physical defects and he was fully qualified for enlistment, retention, and/or separation.

6.  On 13 April 1972, court-martial charges were preferred against him for one specification being AWOL from Fort Leonard Wood and the Overseas Replacement Station from 1 July 1969 to 9 April 1972.

7.  On 14 April 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood 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.  He declined to submit a statement on his own behalf.

9.  On 14 April 1972, his immediate and senior commanders recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.  
10.  On 27 April 1972, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 2 May 1972, he was discharged accordingly. 

11.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial (separation program number 246) with an under other than honorable conditions characterization of service.  He completed 6 months and 1 day of net active service and had 982 days (or 2 years, 8 months, and 12 days) of lost time due to being AWOL.

12.  His DD Form 214 also shows award of the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

13.  His records do not contain any evidence that shows he was ever treated for or diagnosed with any mental issues/conditions while he was serving on active duty.

14.  On 2 May 1977, the Army Discharge Review Board reviewed his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) and determined he did not meet the criteria of the program and did not qualify for a discharge upgrade.

15.  Army Regulation 635-200 sets forth the policy for administrative 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was considered appropriate at the time the applicant was discharged.

   b. Paragraph 3-7a states 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 states 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.  

16.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

2.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence or record does not show and the applicant has not provided any evidence that shows he was ever treated for or diagnosed with any mental issues/conditions while he was serving on active duty.

4.  His record shows he had only 6 months of net active service and almost 2 years and 9 months of lost time due to being AWOL.  

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable 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)                                         AR20130013527



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ABCMR Record of Proceedings (cont)                                         AR20130013527



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