IN THE CASE OF: 

		BOARD DATE:	    29 July 2014

		DOCKET NUMBER:  AR20130020134 


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:

* his wife was killed in an automobile accident, leaving him to be the single parent of a 3-year-old daughter
* he requested a hardship discharge, but it was denied so he took his daughter and went absent without leave (AWOL)
* he asked for a hardship discharge again when he was arrested
* an officer at Fort Leonard Wood, MO, told him the Army would have issued him a family if they wanted him to have one
* once again, he went AWOL and when arrested again, he was told he would lose rank, pay, and receive an undesirable discharge; but at this time he only wanted to raise his daughter

3.  The applicant provides:

* self-authored statements
* character letter
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending 3 April 1970



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 1 October 1964, the applicant enlisted in the Regular Army.  On 25 April 1967, he was honorably discharged to immediately reenlist.  On 26 April 1967, he reenlisted.

3.  On 13 March 1969, his company commander imposed nonjudicial punishment against him under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 17 February 1969 until 5 March 1969.  On the same date, the applicant also received a Letter of Admonition for being AWOL.

4.  A DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 6 June 1969, shows that on 20 May 1969, the applicant was confined by civil authorities for larceny and theft.

5.  A DD Form 458 (Charge Sheet), dated 12 February 1970, shows he was charged with being AWOL from on or about:

* 14 May to 22 July 1969
* 1 August to 17 August 1969
* 22 August 1969 to 8 February 1970

6.  On 13 February 1970, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, of the effects of requesting discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), and of the rights available to him.  

7.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 
635-200.
	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 submitted statements in his own behalf and requested a general discharge.  He stated he had financial problems, a wife, and five children that required his immediate attention.

8.  On 26 March 1970, the separation authority approved the applicant's request and directed the issuance of an undesirable discharge.  On 3 April 1970, he was discharged in accordance with the separation authority's decision with his service characterized as under conditions other than honorable.  He completed 2 years, 2 months, and 8 days of net service this period with 273 days of lost time.

9.  His record is void of any evidence he requested a hardship discharge.

10.  On 11 February 1975, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  The applicant provided self-authored statements regarding events leading to his discharge and a copy of his DD Form 214 for the period of service ending 3 April 1970.  He also provided a character reference letter from a friend of 
42 years.

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

	a.  Chapter 1 of the version in effect at the time stated the type and character of separation issued upon administrative separation from current enlistment or period of service would be determined solely by the member's military record during that enlistment or period of service, plus any extensions thereof prescribed by law or by the Secretary of the Army, or accomplished with the consent of the member.

	b.  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 to an individual who was discharged for the good of the Service. 

	c.  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.

	d.  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.  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 for more than 9 months, 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.

2.  Due to his lengthy period of AWOL, his conduct and performance during his second period of service were not satisfactory.  Although he served honorably during his first enlistment, the characterization of his service for his second enlistment was properly determined solely based on his military record during that enlistment.  



3.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service for the second period.  Therefore, there is an insufficient basis upon which to grant the requested relief.

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)                                         AR20130020134



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130020134



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1