BOARD DATE:  3 June 2014

		DOCKET NUMBER:  AR20130017697


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 upgrade of his undesirable discharge to honorable.

2.  The applicant states that:

	a.  His discharge was improper because it was based on one isolated incident in over 4 years of service.  

	b.  He went home on emergency leave in March 1975 to bring his family to base housing in Frankfurt, Germany.  When he arrived at the home he found his wife with another man and there was a confrontation.  He was arrested for assault and battery, incarcerated for 58 days, and was put on probation for 
3 years.  He was told by the judge that his probation conditions did not permit him to leave the state of Michigan and return to his base in Germany.

	c.  He was then sent to Fort Leonard Wood, Missouri, where he was incarcerated for 29 days before he received his undesirable discharge.

3.  The applicant provides:

	a.  His DD Form 214 (Report of Separation from Active Duty) ending 
17 December 1972 showing he was honorably discharged for the purpose of immediate reenlistment.



	b.  His DD Form 214 ending 19 March 1975.

	c.  His Certificate of Ordination as an Ordained Minister, dated 29 May 2011.

	d.  Five character reference letters from friends, a pastor, and a business associate.  They attest to his character, integrity, and solid family life since his discharge.

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 29 October 1970 and reenlisted on 18 December 1972.  He held military occupational specialty (MOS) 44E (Machinist).  

3.  His DA Form 20 (Enlisted Qualification) shows he served in Vietnam from 
2 June 1971 through 27 March 1972 and he arrived in Germany on or about 
17 April 1974.  He was awarded the National Defense Service Medal, Army Good Conduct Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).  The highest rank he attained was specialist four (SP4)/E-4.  

4.  On 3 March 1975, charges were preferred against the applicant for being absent without leave (AWOL) from 3 December 1974 to 24 February 1975.

5.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive an undesirable discharge which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he would submit a statement on his own behalf.  The statement is not available for review.

6.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of an undesirable discharge.  The separation authority approved the recommendation on 17 March 1975.

7.  On 19 March 1975, the applicant was so discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He had completed a total of 4 years and 29 days of active duty service.  Time lost is shown as 1 November to 1 December 1974 and 3 December 1974 to 23 February 1975 (114 days).

8.  On 9 July 1982, the Army Discharge Review Board determined he had been properly discharged and denied his request for a change in his discharge.  

9.  Army Regulation 635-200 provides 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 considered appropriate.  However, at the time an undesirable discharge was 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 states he committed only a single transgression yet his description relates that he committed an assault, violated probation, and was AWOL.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to honorable or general.

3.  The applicant's character reference letters and the certificate he provided showing his ordination as a minister were all reviewed; however, they are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either fully honorable or 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 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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20130017697



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