BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130013915 


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 discharge under other than honorable conditions.

2.  The applicant states his discharge wasn't fair because he was discharged by force.  He states he was being charged unjustly.

3.  The applicant provides his minister's license.

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's records show he was inducted into the Army of the United States on 10 February 1970 and he held military occupational specialty 63C (Track Vehicle Mechanic).

3.  On 30 August 1970, he was advanced to the rank/grade of specialist four/E-4.

4.  On 25 November 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for participating in a breach of the peace by wrongfully engaging in a fistfight.

5.  On 9 February 1971, he again accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 20 January to 8 February 1971.

6.  On 1 May 1971, he departed his unit on 15 days of ordinary leave, but he did not return.  On 16 May 1971, his unit reported him as AWOL.  On 14 June 1971, he was dropped from the Army rolls as a deserter.  He returned to military control on or about 4 August 1971.

7.  It appears that court-martial charges were preferred against him shortly after his return.  His records contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 5 August 1971, that shows the entry "Special Court-Martial action initiated."

8.  The complete facts and circumstances of his discharge are not available for review with this case.

9.  Headquarters, 3d Armored Division, Special Orders Number 323, dated 19 November 1971, reduced him to private/E-1 by reason of an undesirable discharge.

10.  Headquarters, 3d Armored Division, Special Orders Number 327, dated 23 November 1971, discharged him under the authority of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and separation program number (SPN) 246 (in lieu of trial by a court-martial) effective 28 November 1971 with the issuance of an Undesirable Discharge Certificate.

11.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial on 29 November 1971 under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under conditions other than honorable and he was issued a DD Form 258A (Undesirable Discharge Certificate).  His DD Form 214 also shows he completed 1 year, 6 months, and 10 days of net active service during this period and he accrued 99 days of lost time.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  He provided his minister's license, dated 4 January 2010.

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.  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.  The applicant's records are void of the complete facts and circumstances surrounding his discharge action.  It appears that he was charged with the commission of offense(s) 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.  In the absence of evidence to the contrary, government regularity must be presumed.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

3.  Based on his record of indiscipline, which included two instances of NJP, an extensive history of AWOL, and court-martial charges, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his 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 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)                                         AR20130013915



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ABCMR Record of Proceedings (cont)                                         AR20130013915



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