IN THE CASE OF:	  

		BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130013809 


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 undesirable discharge be changed to an honorable discharge
* his reason for discharge be changed from "For the Good of the Service" to "Hearing Loss"

2.  The applicant states:

* he was discharged because of hearing loss and not because he had a couple of incidents such as returning late from leave of absence with permission
* the deferment issued by military doctors at Walter Reed Army Medical Center would not allow him an overseas assignment, carry weapons, perform guard duty, etc., due to his hearing loss while in training

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 August 1969.  He completed basic combat training and he was subsequently reassigned to Fort Eustis, VA for completion of advanced individual training.

3.  While in training at Fort Eustis, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 14 November 1969, being absent without leave (AWOL) from on or about 27 October to 13 November 1969
* 29 January 1970, for failure to go to his appointed place of duty on 28 and on 29 January 1970
* 18 February 1970, for being AWOL from on or about 3 to 18 February 1970

4.  The applicant's record contains three DA Forms 3349 (Medical Condition – Physical Profile Record) which show:

* 24 November 1969, hearing loss, no assignment involving habitual or frequent exposure to loud noises or firing of weapons (not to include firing for POR (preparation for overseas replacement) qualification; he was medically qualified with duty limitations
* 7 January 1970, hearing loss, no assignment involving habitual or frequent exposure to loud noises or firing of weapons (not to include firing for POR qualification); he was medically qualified for limited duty
* 26 February 1970, deafness left ear, no assignment involving habitual or frequent exposure to loud noises or firing of weapons (not to include firing for POR qualification); he was medically qualified for duty with limitations

5.  His DA Form 3349, dated 26 February 1970, also shows the comment "No guard, sentry duty or forward listening post duty where the safety of himself or others require acute hearing.  Exposure to loud noise is hazardous to this man's health."



6.  On 22 March 1970, he failed to report to Fort Lee, VA, as ordered.  Accordingly, he was reported in an AWOL status.  Furthermore, on 25 March 1970, a Commander's Inquiry was conducted due to the applicant's failure to arrive at his new duty station.  The probable causes and motives could not be determined.  The applicant's status was changed from intransit incoming to AWOL effective 22 March 1970.

7.  On 20 April 1970, the applicant was dropped from Army rolls as a deserter. 

8.  On 8 August 1970, the applicant was apprehended by civil authorities in Fremont, OH, and returned to military control on 12 August 1970.

9.  On 25 August 1970, court-martial charges were preferred against the applicant for one specification of being AWOL from 22 March to 12 August 1970.

10.  On 28 August 1970, the applicant 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant acknowledged:

* he understood that if the discharge request was approved he could be discharged under other than honorable conditions 
* he understood that 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
* he understood he could expect to encounter substantial prejudice in civilian life

11.  On 3 September 1970, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an Undesirable Discharge Certificate, in the rank of private/E-1.





12.  On 3 September 1970, the applicant was discharged as directed.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had completed 3 months and 11 days of total active military service and 287 days of lost time.

13.  On 22 May 1973, the applicant was notified of the Army Discharge Review Board's denial of his request for an upgrade of his discharge.

14.  His service medical records are not contained in his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).  The documents available in his AMHRR show no evidence that he was ever found unfit.

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

	a.  Paragraph 1-7 of the regulation in effect at the time states, in pertinent part, that the type of discharge and character of service will be determined solely by the military record during the current enlistment or period of service, plus any extensions thereof from which the Soldier is being separated.

	b.  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.

	c.  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. 

	d.  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 under other than honorable conditions discharge is normally considered appropriate.


16.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant 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.  The record shows he was charged with being AWOL on multiple occasions, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

2.  The available evidence shows although he suffered hearing loss, he was still medically qualified for duty with limitations.  There is no evidence he had a condition that rendered him unfit to perform the duties required of his office, grade, rank or rating.  He was discharged because he was AWOL/deserter and when court-martial charges were preferred against him, he willingly requested the voluntary discharge.  He could have elected trial by the court-martial if he believed there were extenuating circumstances. 

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to an honorable or a general discharge.

4.  His narrative reason for separation was assigned based on the fact that court-martial charges were preferred against him and he elected the discharge in lieu of trial by court-martial.  Absent his AWOL, there was no fundamental reason to prefer court-martial charges against him and absent the court-martial charges, there was no reason to process him for separation.  The underlying reason for his discharge was his court-martial charges.  The only valid narrative reason for separation is "In lieu of trial by court-martial" which is appropriately shown on his DD Form 214. 





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)                                         AR20130013809



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ABCMR Record of Proceedings (cont)                                         AR20130013809



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