IN THE CASE OF:	  

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130017577 


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 was wrong for fighting in the club when a Marine was cutting the Army down and calling him names
* he enlisted for an artillery specialty but he was kicked out due to fighting and he ended up being trained as a cook
* the 93rd was full of misfits with drinking problems and other issues; nine Soldiers in his unit went absent without leave (AWOL)
* he wanted to go to Vietnam and tried to do so on 9 different occasions but his request was not honored
* he knows going AWOL was wrong; but, unlike others, they went AWOL because they were told they were going to Vietnam
* draft dodgers ended up receiving amnesty and getting a second chance while he ended up with an undesirable discharge
* when he volunteered, all he wanted to do was serve and go to battle; his intentions were honorable
* he was 19 years of age when this happened; he is now age 60 and all that he wants is closure

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 was born in July 1953.  At age 17, on 31 August 1970, he enlisted in the Regular Army.  After completing basic combat training, he was reassigned to Fort Sill, OK, for training in military occupational specialty (MOS) 82C (Field Artillery Surveyor), but he never completed the training.  

3.  He was reassigned to Fort Leonard Wood, MO, where he was trained in and held MOS 94B (Cook).  While at Fort Leonard Wood, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 20 April 1971, failing to go at the time prescribed to his appointed place of duty (135th Evacuation Hospital)
* 10 May 1971, failing to go at the time prescribed to his appointed place of duty (93rd Evacuation Hospital)
* 25 May 1971, absenting himself from his duties from 21 to 22 May 1971
* 18 August 1971, failing to go at the time prescribed to his appointed place of duty (morning formation)
* 30 August 1971, failing to go at the time prescribed to his appointed place of duty (assistant charge of quarters)
* 4 October 1971, being AWOL from 1 to 4 October 1971
* 20 October 1971, failing to go at the time prescribed to his appointed place of duty (morning formation)
* 9 November 1971, failing to go at the time prescribed to his appointed place of duty (93rd Evacuation Hospital)

4.  On 28 January 1972, his command preferred court-martial charges against him for two specifications of being AWOL from 3 December 1971 to 2 January 1972 and from 4 January to 25 January 1972. 

5.  On 1 March 1972, the applicant consulted with legal counsel and he was advised 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 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the discharge request was approved 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
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

6.  On 10, 13 and 14 March 1972, his immediate, intermediate, and senior commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.  His immediate commander stated:  

* repeated counseling concerning the applicant's AWOL proved to no avail
* he consistently refused to consider his responsibilities as a Soldier and he felt he had a greater obligation to his family
* many attempts by him (the commander) and the unit first sergeant were made with the hope the applicant would turn around and accept the standards
* he failed to make any concrete attempts to stop going AWOL
* given his failure to report to duty and given his multiple NJPs, future rehabilitative efforts were of no value
* he had established a definite trend of absenting himself from his unit and he seemed to be unable to adjust to military service


7.  On 24 March 1972, subsequent to a legal review and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed that be reduced to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.  

8.  On 6 April 1972, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 1 year, 5 months, and 5 days of active service and he had 62 days of lost time.

9.  On 13 February 1974, the Army Discharge Review Board reviewed his discharge but found it proper and equitable.  As such, that board denied his request for an upgrade of his discharge. 

10.  On 20 October 1975, the ABCMR notified him that after examining and considering his Army records and the facts presented, the Board found insufficient evidence to indicate a material error or injustice.  Accordingly, his request was denied.  The Record of Proceedings is not available for review. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 was 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 request that his undesirable discharge be upgraded was carefully considered.

2.  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 applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his arguments:

	a.  The applicant's records do not show he served in Vietnam or volunteered to serve in Vietnam or that he was denied such service. 

	b.  Although he was 17 years of age when he enlisted, he was 19 years of age when he went AWOL.  But there is no evidence he was any less mature than other Soldiers who successfully completed their service or that his extensive history of indiscipline was caused by his age. 

	c.  There is nothing in his records such as an award, an achievement act, or a record of outstanding performance that might mitigate his misconduct.  But even if there had been such an act, given his undistinguished service, it is unlikely it would have outweighed his extensive history of misconduct.

	d.  The Army has never had nor does it now have a policy wherein the characterization of service is changed, corrected, or upgraded because of age or the passage of time. 

	e.  There is nothing in the applicant's record that shows he was forced to choose the discharge.  He went AWOL by choice.  When presented with his options, he willingly chose the discharge.  

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 also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his service to either honorable or a general.

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)                                         AR20130017577



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ABCMR Record of Proceedings (cont)                                         AR20130017577



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