IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130016128 


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 that his undesirable discharge be upgraded to an honorable or general discharge.

2.  The applicant states that his biological father was a World War II veteran and he is his father's only son; therefore, he should not have been an infantryman in a combat zone due to being a sole surviving son.

3.  The applicant provides no additional documents with his application.

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.  On 15 June 1970, the applicant was inducted into the Army of the United States and at the time of induction he indicated that he had one brother.  He was transferred to Fort Lewis, Washington to undergo one-station unit training as an infantryman.

3.  On 4 August 1970, nonjudicial punishment was imposed against him for failure to go to his place of duty.

4.  He completed his training and was transferred to Vietnam on 2 December 1970.

5.  On 21 March 1971, charges were preferred against the applicant for three specifications of being absent without leave (AWOL) during the periods 
25 – 27 January 1971, 29 January – 26 February 1971, and 
27 February – 2 March 1971, multiple specifications of failure to go to his place of duty, disobeying lawful commands from a noncommissioned (NCO) officer and commissioned officer, being disrespectful in language towards an NCO, and breaking restriction.

6.  On 18 April 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

7.  The appropriate authority (a brigadier general) approved his request on        24 May 1971 and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, on 7 June 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 11 months and 22 days of active service and he had 34 days of lost time due to being AWOL.

9.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Department of Defense Special Discharge Review Program (SDRP) on 27 November 1974 contending that he was a conscientious objector and his chain of command would not forward his application.  After reviewing the facts and circumstances surrounding his discharge the ADRB determined that his discharge was both proper and equitable and voted four to one to deny his request for an upgrade of his discharge.

10.  On 22 August 1979, he again applied to the ADRB for an upgrade of his discharge claiming there were extenuating circumstances in his case that warranted an upgrade of his discharge.  The applicant was granted a personal appearance before the ADRB traveling panel in Dallas, Texas.  After considering the facts and circumstances, the ADRB voted unanimously to deny his request on 9 March 1981.

11.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

12.  Army Regulation 635-200, 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.  

13.  Army Regulation 614-200 (Selection of Enlisted Soldiers for Training and Assignment) provides in Chapter 3, Section IV that a sole surviving son/daughter is the only remaining son or daughter in a family in which the father, mother, or one or more sons and daughters were killed in action or died in the line of duty while serving in the Armed Forces as a result of wounds, accident or disease or is captured or missing in action or is permanently 100 percent disabled.  Thus, the continued existence of a family unit is not required as a prerequisite for qualification as a sole surviving son or daughter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct, his overall record of service, and the absence of substantiated mitigating circumstances.  Additionally, there is no evidence to support his contention that he was a sole surviving son. 

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)                                         AR20130016128



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ABCMR Record of Proceedings (cont)                                         AR20130016128



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