BOARD DATE:	2 July 2014  

		DOCKET NUMBER:  AR20130019746 


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 requested a hardship discharge due to his father's condition but when he was told that the processing time was unknown, he made a bad decision and accepted an under other than honorable conditions discharge feeling this was the quickest way out of the Army.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 6 April 1971, the applicant enlisted in the Regular Army and he served in military occupational specialty 94A (Cook's Helper).

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

* 18 September to 15 October 1971 for being absent without leave (AWOL)
* 16 October to 22 November 1971 for being dropped from the rolls of his unit (DFR) 

4.  A charge sheet is unavailable for review; however, on 8 December 1971 he 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.

5.  He voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service in lieu of trial by court-martial, chapter 10.

	a.  He acknowledged that:

* 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 submitted a statement in his own behalf wherein he indicated that he could better benefit his family by being out of the Army and closer to home so he could help more.

6.  On 3 January 1972, the separation authority approved his request and directed that he be issued an Undesirable Discharge Certificate.  On 6 January 1972 he was discharged in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  He completed 6 months and 26 days of total active service with 66 days of time lost.

7.  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.

8.  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.  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 the commission of an offense punishable under the UCMJ with a punitive discharge.  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.

3.  Based on his extensive period 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)                                         AR20130019746





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ABCMR Record of Proceedings (cont)                                         AR20130019746



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