BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130018491 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect, that all the offenses listed on all of his DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) and his performance counseling statements are incorrect.  Further, he was informed by his legal counsel that his discharge would be upgraded to under honorable conditions (general) after 6 months.

3.  The applicant provides:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 4 November 1970 and 24 March 1972
* four character references
* a Standard Form (SF) 180 (Request Pertaining to Military Records)

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 completed honorable service from 5 October to 4 November 1970.  He was discharged due to a void enlistment, having been found to be only 16 years old at the time of his enlistment.

3.  On 21 July 1971, the applicant enlisted in the Regular Army.  He failed to complete his initial entry training.

4.  He accepted nonjudicial punishment (NJP) on three occasions for: 

* willfully disobeying a lawful order on 18 August 1971
* being absent without leave (AWOL) from 12 October to 20 October 1971
* being AWOL from 15 November to 16 November 1971

5.  In each instance he elected not to submit matters in his own defense nor did he appeal his punishment.

6.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of his DA Form 20 (Enlisted Qualification Record) shows he had the following lost time:

* 12 to 19 October 1971 (AWOL)
* 15 November 1971 (AWOL)
* 6 December 1971 to 4 January 1972 (AWOL)
* 5 January to 13 February 1972 (Dropped from the Rolls (DFR))
* 14 February to 3 March 1972 (Pre-Trial Confinement)
* 6 March to 24 March 1972 (AWOL)

7.  The charge sheet is unavailable; however, his record contains a memorandum, dated 16 March 1972, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX which shows the applicant was charged with being AWOL from Fort Sill, Oklahoma, from 6 December 1971 until 16 February 1972, when he was apprehended.  The applicant indicated that he went AWOL after being refused emergency leave.

8.  A DA Form 2496 (Disposition Form) shows the applicant consulted with counsel who advised him of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the procedures and rights available to him.

9.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 
(Personnel Separations - Enlisted Personnel), chapter 10.

	a.  He acknowledged that:

* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	b.  He indicated he would submit a statement in his own behalf but a statement is not in the record.

10.  On 16 March 1972, the separation authority approved his request and directed that he be issued an Undesirable Discharge Certificate.  On 24 March 1972, he was discharged in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  He completed 5 months and 8 days of total active service with 117 days of lost time.

11.  His record is void of any performance counseling and the applicant did not provide any counseling statements.

12.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 16 December 1977.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.

	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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  There is insufficient evidence to support his contentions that the offenses for which he accepted nonjudicial punishment were unjust or in error.  He could have demanded court-martial if he believed the offenses were unjust or in error.  Further, the Army does not have, nor has it ever had, a policy of upgrading discharges based solely on the passage of time.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  His record shows he was well advised and fully aware of the consequences of his decision.

4.  Based on his extensive periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade 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)                                         AR20130018491





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ABCMR Record of Proceedings (cont)                                         AR20130018491



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