BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130018630 


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 undesirable discharge be upgraded.

2.  The applicant states that an undesirable discharge was an injustice because he was not made aware of the discharge he would receive, the ramifications of an undesirable discharge or any of his options.  He also states that he was not given a trial and he thought he was getting a general discharge.

3.  The applicant provides no additional documents with 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.  The applicant enlisted in the Regular Army on 28 January 1972 for a period of 3 years and training as a field wireman.  He completed his basic training at Fort Ord, California and was transferred to Fort Gordon, Georgia to undergo his advanced individual training.

3.  On 16 June 1972, nonjudicial punishment (NJP) was imposed against him for two counts of disobeying a lawful order from a superior noncommissioned officer.

4.  On 27 July 1972, NJP was imposed against him for being absent without leave (AWOL) from 14 July to 18 July 1972.

5.  The applicant was released from training as a wireman and was transferred to Fort Sill, Oklahoma to undergo training as a field artillery crewman.  He completed his training and was transferred to Korea on 11 November 1972.

6.  On 13 December 1972, NJP was imposed against him for failure to safeguard his weapon.

7.  He departed Korea on 28 November 1973 for Fort Lewis, Washington.

8.  The applicant again departed AWOL from 25 to 27 March 1974 and 28 March to 9 May 1974.

9.  The complete facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Seattle, Washington on 30 August 1974.

10.  However, his records contain a duly authenticated DD Form 214 (Report of Separation from Active Duty) which shows that he was discharged under other than honorable conditions on 10 May 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 2 years, 1 month and 22 days of active service and had 51 days of lost time due to being AWOL.

11.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

	b.  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.  In the absence of evidence to the contrary, it must be presumed that 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 with no indication of any violations of the applicant's rights and that the type of discharge directed and the reasons were appropriate under the circumstances.

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

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given his repeated misconduct and his otherwise undistinguished record of service.  Accordingly, his service does not rise to the level of even a general discharge.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130018630



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ABCMR Record of Proceedings (cont)                                         AR20130018630



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