IN THE CASE OF:	  

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130018350 


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 young when he enlisted and he had a bad childhood and made many mistakes.  He has overcome that type of behavior and has not been in any trouble since 1975.  He believes his discharge was too harsh for the offenses he was charged with and, given his clean record since 1975 and the fact that he is 63 years of age, he believes his discharge should be upgraded.

3.  The applicant provides no additional 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 enlisted in the Regular Army with minority waivers on 1 May 1968 for a period of 3 years under the airborne enlistment option.  He completed basic training at Fort Leonard Wood, Missouri, and was transferred to Fort Sill, Oklahoma, to undergo advanced individual training on 8 July 1968.

3.  The applicant was absent without leave (AWOL) on 23 July 1968 and remained absent in desertion until he was returned to military control on 28 September 1968.  He again was AWOL on 1 October 1968 and remained absent until he was returned to military control on 18 February 1969.

4.  On 27 February 1969, he was convicted by a special court-martial of being AWOL from 23 July to 27 September 1968 and from 1 October 1968 to 17 February 1969.  He was sentenced to confinement at hard labor for 5 months and forfeiture of $68.00 pay per month for 5 months.

5.  The applicant was released from confinement at Fort Riley, Kansas, on 15 May 1969 and was transferred to Fort Knox, Kentucky, for his next assignment.  However, he was AWOL and remained absent until he was returned to military control on 2 September 1969 and was placed in confinement.

6.  On 20 October 1969 he again was AWOL and remained absent until he was arrested by civil authorities on 29 February 1972 and charged with attempted murder and aggravated assault.

7.  The applicant was convicted by civil authorities of the charges against him and was sentenced to a minimum of 3 years and a maximum of 5 years in prison.  He elected to appeal his sentence.

8.  He was released from the Illinois State Prison on 8 January 1973.  On 18 January 1973, charges were preferred against the applicant for being AWOL from 15 May to 2 September 1969 and from 20 October 1969 to 8 January 1973.

9.  On 19 January 1973 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He elected to submit a statement in his own behalf wherein he asserted that given his short amount of good time, his extensive absences and civil conviction, and that he was still on parole from civil authorities, he desired to be discharged for the good of the service as he had no desire to remain in the Army.

10.  The appropriate authority (a major general) approved his request for discharge on 8 February 1973 and directed the issuance of an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged in lieu of trial by court-martial on 14 February 1973 under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an undesirable discharge.  He completed 4 months and 4 days of active service and had 1,625 days of lost time due to AWOL and confinement by civil authorities.

12.  On 14 September 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended that his discharge was too harsh for his offenses.  After reviewing the available evidence in his case, the ADRB determined the applicant's discharge was both proper and equitable and voted to deny his request on 6 May 1979.

13.  Army Regulation 635-200 sets forth 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

	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's 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having an additional felony conviction on his record.

3.  The applicant's contentions have been considered; however, they are not sufficiently mitigating to warrant relief when compared to the serious nature of the charges against him and his overall undistinguished record of service.  His service did not rise to the level of an honorable or a general discharge.  Accordingly, there appears to be no valid basis to approve his request for an upgrade of 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 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)                                         AR20130018350



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ABCMR Record of Proceedings (cont)                                         AR20130018350



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