IN THE CASE OF:	  

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018264 


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 to a general discharge under honorable conditions.  

2.  The applicant states he had requested leave to see his newborn child.  He had contacted the Red Cross, but he was denied the leave.

3.  The applicant provides no additional evidence in support of 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 31 August 1972, he enlisted in the Regular Army for 3 years.  On 
27 February 1973, he was assigned to Battery B, 1st Battalion, 60th Air Defense Artillery at Porter, IN.  He was promoted to private/pay grade E-2 on 3 November 1972.

3.  On 20 August 1973, he was given a mental status evaluation by the Chief, Mental Hygiene Consultation Service, Fort Sheridan Medical Department Activity, Fort Sheridan, IL .  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

4.  On 5 September 1973, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from:

* on or about 26 June to on or about 29 June 1973 (4 days)
* on or about 3 July to on or about 25 July 1973 (23 days)
* on or about 9 August to on or about 24 August 1973 (16 days)
* on or about 28 August to on or about 4 September 1973 (11 days)

5.  On 6 September 1973, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of 
chapter 10 of Army Regulation 635-200 (Personnel Separations Enlisted Personnel).  He understood he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf; he indicated he would not submit a statement

6.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
7.  On 9 October 1973, the appropriate authority approved the applicant's request for discharge for the good of the service, directed he be reduced to private E-1 in accordance with chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management System) and directed the issuance of an Undesirable Discharge Certificate.

8.  Headquarters, 28th Air Defense Artillery Group, Fort Sheridan IL, Special Order Number 172, dated 11 October 1973, reduced him in grade to private/pay grade E-1 in accordance with chapter 7 of Army Regulation 600-200.

9.  On 12 October 1973, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 and issued an Undesirable Discharge Certificate.  He completed 11 months and 23 days of active service that was characterized as under conditions other than honorable.  He had 48 days of time lost.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-30 that upon determination that an individual was to be discharged from the service with an undesirable discharge, the individual was to be reduced to the lowest enlisted grade. 

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10, in effect at the time, stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, at the time an Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  The Table of Maximum Punishments, Manual for Courts-Martial, United States 1969 (Revised edition), in effect at the time, shows:

	a.  The maximum punishment for being AWOL for not more than 3 days was:

* confinement at hard labor for 1 month
* forfeiture of two-thirds pay for 1 month
	
	b.  The maximum punishment for being AWOL for more than 3 days but not more than 30 days was:

 * confinement at hard labor for 6 months
 * forfeiture of two-thirds pay for 6 months

14.  Part II, Rules for Courts-Martial, govern the procedures and punishments in all courts-martial and, whenever expressly provided, preliminary, supplementary, and appellate procedures and activities.  Rule 1003 - Punishments, states if an accused is found guilty of two or more offenses for none of which a dishonorable or bad-conduct discharge is otherwise authorized, the fact that the authorized confinement for these offenses totals 6 months or more shall, in addition, authorize a bad-conduct discharge and forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  In order to request a discharge for the good of the service lieu of trial by court-martial an individual must have been charged with an offense or offenses for which the authorized punishment included a punitive discharge.  If he had been found guilty on all four counts of AWOL he could have received a sentence of 
6 months confinement for each count, resulting in a total of 24 months confinement.  Therefore, he was subject to a bad conduct discharge.

2.  His voluntary request for separation 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.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  During his short period of service he incurred 48 days of lost time.  Therefore, his service is considered unsatisfactory.  The undesirable discharge he received accurately reflected his overall record of service during his short period of active service.

4.  Based on the foregoing, there is no basis for upgrading his 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)                                         AR20130018264



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ABCMR Record of Proceedings (cont)                                         AR20130018264



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