IN THE CASE OF 

		BOARD DATE:	    15 July 2014

		DOCKET NUMBER:  AR20130019162 


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 would like his discharge 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 on 3 June 1970.  He was assigned to the 1st Battalion, 10th Infantry Regiment, Fort Carson, CO, on 31 December 1970.

3.  On 26 February 1971, he was reported in an absent without leave (AWOL) status from his assigned unit and he was subsequently dropped from the rolls (DFR) as a deserter.

4.  On 14 April 1971, he was returned to military control at Fort Carson and assigned to the 1st Battalion, 10th Infantry Regiment.

5.  On 19 April 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 26 February to 14 April 1971.

6.  On 14 April 1972, he was reported AWOL from his assigned unit and he was subsequently DFR as a deserter.

7.  On 23 February 1973, he was apprehended, returned to military control at Fort Carson, and assigned to the Personnel Control Facility.  It is presumed court-martial charges were subsequently preferred against him for being AWOL from 14 April 1972 to 23 February 1973.

8.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains a Request for Excess Leave, dated 12 March 1973, wherein he requested he be granted excess leave while awaiting disposition of his discharge under the provisions of Army Regulation 635-200, (Personnel Separations – Enlisted Personnel).  He stated he did not feel he should serve honorably while awaiting a discharge for the good of the service as he had family problems to take care of.

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial (separation program number 246) with an under other than honorable conditions characterization of service.  He completed 2 years, 2 months, and 23 days of net active service and had 230 days (7 months and 20 days) of lost time due to being AWOL.

10.  There is no indication he 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 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

12.  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.

13.  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.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, it is presumed court-martial charges were preferred against him for 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 for the good of the service - in lieu of trial by court-martial. 

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights, and the type of discharge directed and the reason for separation were appropriate considering the available facts of the case.  

3.  The applicant's record confirms he received NJP for being AWOL and had almost 8 months of lost time due to being AWOL.  His available record shows his service did not meet the standards of acceptable conduct for Army personnel.  In addition, this misconduct renders his service unsatisfactory.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or 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)                                         AR20130019162



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ABCMR Record of Proceedings (cont)                                         AR20130019162



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