BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130013646 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, it has been more than 10 years since his discharge; therefore, he is requesting an upgrade of his characterization of service based on the "10 year" rule. 

3.  The applicant provides 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 on 27 October 1972 and served as a trainee.  The highest rank/grade he attained was private/E-1.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from:

* 1 February 1973 to 5 February 1973
* 16 February 1973 to 11 April 1973
* 16 May 1973 to 25 May 1973

4.  His record contains a Standard Form (SF) 88 (Report of Medical Examination) and an SF 93 (Report of Medical Examination), dated 18 April 1973 which show he met medical retention standards and was medically qualified for separation.

5.  His record contains a DD Form 458 (Charge Sheet), dated 30 April 1973 showing court-martial charges were preferred against him for being AWOL from 1 February 1973 to 6 February 1973 and from 16 February 1973 to 12 April 1973.

6.  On 1 May 1973, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  

8.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  He submitted a statement, dated 1 May 1973, wherein he indicated that he did not like the Army because he felt he had been harassed since he entered active duty and felt he would be better off if he was released from military service.  He further indicated that he would continue to go AWOL if he was not discharged.
10.  HIs record contains a waiver of waiting period and acknowledgement of instruction, dated 1 May 1973, wherein he waived the 48 hour waiting period between his receipt of court-martial charges and his request to be discharged in accordance with Army Regulation 635-200, Chapter 10.

11.  His record does not contain the approved request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial; however, it does contain a duly constituted 
DD Form 214, which shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service with an under conditions other than honorable characterization of service.  His DD Form 214 shows he completed 4 months and 19 days of creditable active military service and he had 70 days of lost time.

12.  There is no indication that the applicant applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, an undesirable discharge was normally considered appropriate at the time. 

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service 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.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  His record contains an extensive history of AWOL.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.

4.  There is no provision within Army regulations for upgrading a Soldier's characterization of service based on the passage of time, for example, the "10 year" rule the applicant mentioned.  Every case is individually decided based upon merits of the case when an applicant requests a correction to his military records.

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)                                         AR20130013646





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ABCMR Record of Proceedings (cont)                                         AR20130013646



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