BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130020312 


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, in effect:

* he enlisted in the Army to be an electrician
* the Army changed his military occupational specialty (MOS), promised to change it back, but never did
* he was sent to the 55B (Ammunition Specialist) course
* he went absent without leave (AWOL) to get out of this training

3.  The applicant provides his DD Form 214 and a self-authored statement.

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's military service records show he enlisted in the Regular Army on 19 January 1971 for 2 years.  His enlistment contract shows he enlisted for the Regular Army Enlistment Option, and his DA Form 3286-3 (Statements for Enlistment) show he signed acknowledging that his initial assignment to training and/or duty would be determined in accordance with the needs of the Army.

3.  On 16 January 1971, the applicant extended for 12 months to attend Ammunition Storage Specialist training.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 13 (Enlisted or Volunteered for) MOS 55B, Ammunition Specialist is lined through;

	b.  item 22 (MOSs) the entries:  

(1)  primary (P), MOS 36K Field Wireman, 16 July (no year);

(2)  MOS 94A, (Food Service Apprentice), 21 March 1972, is lined through;

(3)  secondary (S), MOS 11B (Light Weapons Infantryman), 21 March 1972; and 

		(4)  MOS 94B, (Cook), 21 March 1972.

	c.  item 27 (Military Education) the entry Field Wireman Course, MOS 36K, U.S. Army Training Center, 8 weeks, 1971.

	d.  item 38 (Record of Assignments) he was serving in MOS 55B, student, on 30 March 1971 (for which he received “good” conduct and efficiency ratings); he attended another advanced individual training (not listed) from 17 May – 16 July 1971; he served in MOS 36K, Field Switch Board Operator, from 29 September 1971 to 7 May 1973; and in MOS 57A, Duty Soldier, from 6 June to 31 October 1973. 

5.  Special Orders Number 81, issued by Headquarters, 8th Infantry Division, dated 21 March 1972, awarded the applicant SMOS 11B2O and withdrew PMOS 11B2O, effective 21 March 1972.

6.  His record contains his disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:
* being AWOL from 9 to 16 April 1971
* failure to obey a lawful general regulation by having and using fireworks on 3 July 1972
* failure to be at his appointed place of duty on 1 November 1972  

7.  The applicant's record contains a DD Form 458 (Charge Sheet) which shows court-martial charges were preferred against him on 4 October 1973 for four specifications of being AWOL from 7 May to 6 June 1973, 14 June to 8 July 1973, 31 July to 11 September 1973, and 20 to 23 September 1973.

8.  On 25 September 1973, 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 undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were 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. 

9.  The applicant also submitted a statement in his own behalf wherein he also indicated that he needed to be at home because his parents were having problems due to his mother's health and a child with mental health issues.

10.  The applicant's unit commander and subsequent commanders recommended approval with the issuance of an Undesirable Discharge Certificate.

11.  On 23 October 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and that he be issued an undesirable discharge.
   
12.  On 31 October 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an undesirable discharge after serving 2 years, 6 months, and 6 days of active service and he had 99 days of lost time.  The DD Form 214 he was issued also shows in:
* Item 16a (Primary Specialty Number and Title) the entry 94B2O, Cook,  
21 March 1971
* Item 17a (Secondary Specialty Number and Title) the entry 11B2O, Light Weapons Infantryman, 21 March 1971
* Item 27 (Remarks) the entry "IN SERVICE TRAINING COURSES:  FIELD WIREMAN CRSE, 8 weeks, 1971"

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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.  At the time an undesirable discharge would normally be given to 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 evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  His record shows he had one court-martial charge, three nonjudicial punishments under the UCMJ, and 99 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

3.  There is no evidence of record nor did the applicant submit any evidence that shows he enlisted to be an electrician or that he sought help from his chain-of-command to change his MOS to become an electrician.  However, the evidence of record shows the applicant enlisted for the 55B, Ammunition Specialty course.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130020312



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ABCMR Record of Proceedings (cont)                                         AR20130020312



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