IN THE CASE OF:	   

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130016590 


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. 

2.  The applicant states he received an Article 15 that punished him with a forfeiture of $144.00 pay for one month.  From that day on, he drew no money.  Also, the whole time he was in basic training he got $75.00 worth of pay.  At that time, everyone pointed him wrong.  So, he had to go in an absent without leave (AWOL) status in order to get a job to support his pregnant wife.  He still has not received any pay from December 1972 to December 1973.  He was misled in whom to talk to and whom to see.  The pay vouchers they sent him had two different social security numbers on them.  He was only 17 years of age when he joined the Army.  If they only had not messed up his pay, he would have stayed in and given the Army 25 or 30 years of a dedicated Soldier.  But, with a pregnant wife, living off post, he just had to do what he had to do at the time.  That is why he received an Article 15.  His grandmother had passed and it took 14 days to get there and back with no money.

3.  The applicant does not provide any 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's records show he was born on XX August 1955 and he enlisted in the Regular Army at 17 years and 4 months of age on 19 December 1972.  He was assigned to Fort Jackson, SC, for completion of training.  

3.  On 14 March 1973, he departed his Fort Jackson training unit in an AWOL status.  However, he returned to military control on 26 March 1973.  

4.  On 27 March 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 14 to 26 March 1973.  His punishment consisted of a forfeiture of $144.00 pay per month for one month and extra duty and restriction.  

5.  It appears he completed advanced individual training and was awarded military occupational specialty 64C (Light Vehicle Driver).  His DA Form 20 (Enlisted Qualification Record) shows that following completion of training he was reassigned to Fort Gordon, GA. 

6.  On 27 June 1973, he again departed his unit in an AWOL status but he returned to military control on 1 July 1973.  

7.  On 13 September 1973, he departed his unit in an AWOL status and on 12 October 1973, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities and returned to military control at Marine Corps Supply Center, Albany, GA, on 27 October 1973.  

8.  It appears after his return from AWOL, his chain of command preferred court-martial charges against him.  

9.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain the following documents: 

	a.  Unit Orders Number 87, issued by the U.S. Army Personnel Control Facility, Headquarters Command, Fort Benning, GA, on 19 December 1973, reducing him to private/E-1 effective 13 December 1973 by reason of having received an undesirable discharge. 
	b.  Special Orders Number 353, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, on 19 December 1973 ordering his discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of under other than honorable conditions, effective 19 December 1973.

	c.  A duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 19 December 1973 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial with a character of service of under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.  This form also shows he completed a total of 9 months and 29 days of creditable active service and he accrued 62 days of lost time under Title 10, U.S. Code, section 972. 

10.  There is no indication he petitioned the army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

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.  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.

	a.  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.

	b.  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 record is void of the specific 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.  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 would have 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.  With respect to his arguments:

	a.  Although the applicant was 17 years and 4 months of age at the time of his enlistment, there is insufficient evidence to show his AWOL was caused by his age or that he was any less mature than other Soldier of the same age who completed their term of service.  

	b.  While it is true that his Article 15 punishment was a forfeiture of $144.00 pay for one month, this was a consequence of his own action of violating the UCMJ by going AWOL.  There would have been other legitimate avenues to address his issues had he chosen them.

4.  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.  Therefore, the applicant is not entitled to an honorable or a general 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 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)                                         AR20130016590





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ABCMR Record of Proceedings (cont)                                         AR20130016590



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