IN THE CASE OF:
BOARD DATE: 8 May 2014
DOCKET NUMBER: AR20130015251
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 undesirable discharge to general under honorable conditions.
2. The applicant states, in effect, he was absent without leave (AWOL) in order to assist his grandmother with his niece and nephew.
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 enlisted in the Regular Army on 27 August 1971. He completed basic training on 31 October 1971, but he failed to complete advanced individual training.
3. The applicant was AWOL on five occasions between 31 October 1971 and 2 March 1973 for a total of 377 days of lost time.
4, His first period of AWOL ended as a result of apprehension by civilian authorities for assault. A civilian court subsequently found him guilty of the assault charge.
5. The applicant's second period of AWOL also ended as a result of apprehension by civilian authorities. The reason for his civilian arrest is not of record.
6. Upon return to military control following his fifth period of AWOL, 17 January 1973 to 2 March 1973, the applicant was placed in pre-trial confinement pending court-martial.
7. On 7 March 1973 after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for an offense punishable by a bad conduct or dishonorable discharge. He acknowledged that if his request were accepted, he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate. He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge. In his request for discharge he stated he would continue to be AWOL as long as his family situation continued.
8. The separation authority approved his request and directed the issuance of an undesirable discharge.
9. On 18 April 1973, the applicant was separated under the provisions of Army Regulation 635-200, chapter 10. He completed 7 months and 5 days creditable service and accrued 377 days of lost time.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
b. Paragraph 3-7c provides that a discharge under other than honorable conditions is issued when there is/are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.
c. Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. There is no indication that his request was made under coercion or duress.
2. The applicant never completed training and was AWOL on five occasions with a total of 377 days of lost time.
3. The applicant had almost twice as much lost time due to AWOL as he had of creditable service and his records contain no evidence of any service that would mitigate the extensive periods of his AWOL.
4. The applicant has not presented any evidence or argument to show his service met the standards of acceptable conduct and performance of duty for award of a general discharge under honorable conditions.
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) AR20130015251
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ABCMR Record of Proceedings (cont) AR20130015251
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