BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130018141 


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 discharge be upgraded to a general discharge.

2.  The applicant states he enlisted in the Army at the age of 18 years with a friend, but they were separated.  In addition, he was having problems at home.  He could not cope with the rules and regulations of the Army.  He believes this was due to his immaturity and separation from his family.  The only way out for him was to go absent without leave (AWOL).  He advised authorities he understood the consequences of receiving an undesirable discharge, when he really did not.

3.  He is not proud of the fact and no one knows but his wife of the last 35 years. He would like to talk about the military with his family; however, he is ashamed of his actions and the type of discharge he received.  He has tried to ignore this over the years and has been successful in providing for his family, even though Army officials stated he was "extremely slow mentally."  For many years, he has worked construction jobs and has been self-employed for the past 16 years.  He has a good work record, and he has not had any encounters with law enforcement since his discharge.  He attends church regularly and has held the position of trustee in his congregation.

4.  The applicant provides:
* DD Form 214 
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* copy of his Request for Discharge for the Good of the Service and approval of 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 22 March 1972.  He successfully completed basic combat training and he was assigned to a unit at Fort Bragg, NC for on-the-job training in military occupational specialty 13A (Cannoneer).

3.  On 13 July 1972, he accepted nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for the period 5-12 July 1972.

4.  A DD Form 458 (Charge Sheet), dated 25 September 1972, shows court-martial charges were preferred against the applicant for being AWOL for the period 19 July 1972 through 24 September 1972.

5.  On 26 September 1972, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his behalf.


6.  On 24 November 1972, the appropriate authority approved his request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that he be given an Undesirable Discharge Certificate.  On 7 December 1972, he was discharged accordingly.  He had completed a total of 6 months and 1 day of creditable active service with 74 days of lost time.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. 

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  His post-service conduct and achievements are acknowledged.  However, post-service conduct, achievements, or the passage of time are not normally a sufficient basis for upgrading a discharge.

3.  The applicant's records show he went AWOL on two occasions.  As a result, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general discharge.  He voluntarily requested discharge in lieu of court-martial.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.
5.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20130018141





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ABCMR Record of Proceedings (cont)                                         AR20130018141



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