IN THE CASE OF

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018794 


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 several times he requested to be sent to an overseas duty station.  He was promised he would be sent overseas when he enlisted.  He took his enlistment brochure to his superiors and was laughed at.  He stayed in the woods and was young without an understanding of the cavalry.  He went absent without leave (AWOL) and returned because he was wrong.  However, he still hoped he would go overseas.  Instead, they put him in the stockade for several months and discharged him from service.

3.  The applicant provides a letter from his pastor, his supervisor, and local sheriff.

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 3 December 1973, the applicant enlisted in the Regular Army, at the age of 22.  The applicant's enlistment contract states he enlisted for a Special Unit Enlistment Option to be assigned to Fort Hood, Texas in military occupational specialty 63H (Automotive Repairman).  His contract does not indicate that he enlisted for overseas service.  

3.  The applicant's record contains a DA Form 4187 (Personnel Action) which shows he volunteered for overseas service on 16 October 1974.

4.  The evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 5 February 1975, for operating a vehicle while drunk
* 12 January 1976, for possessing one ounce, more or less, of marijuana

5.  On 12 May 1976, court-martial charges were preferred against the applicant for three specifications of violating Article 86, UCMJ, for being absent from his unit for the periods 9 to 11 and 17 to 22 March 1976, as well as 29 March to     11 May 1976.

6.  On 21 May 1976, the convening authority referred the charges for trial by a special court-martial.

7.  On 24 May 1976, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.

9.  On 28 May 1976, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On  1 July 1976, the applicant was accordingly discharged.

10.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 2 years, 5 months, and 10 days of creditable active service during this period and he had 50 days of time lost.

11.  On 25 October 1993, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  The applicant provides three letters in support of his application to the Board.  Each references the applicant's character and positive contributions in his post-service life.  

13.  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, the 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 at the time the applicant was discharged.

14.  Army Regulation 635-200, 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

15.  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.  Contrary to the applicant's belief that he would be sent overseas when he enlisted, his enlistment contract does not indicate that he enlisted for overseas service.  While evidence does show the applicant volunteered for overseas service on 16 October 1974, the Army was not contractually obligated to assign the applicant overseas. 

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Records show the applicant was well over 22 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  Notwithstanding the supportive statements provided by the applicant, post-service conduct alone is not normally a basis for upgrading a discharge.  

5.  Based on his record of indiscipline and history of being AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to 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 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)                                         AR20130018794



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ABCMR Record of Proceedings (cont)                                         AR20130018794



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