IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130020563


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states:

* he is in need of healthcare and he wants his discharge upgraded so he can obtain healthcare benefits
* his first period of being absent without leave (AWOL) occurred when his wife gave birth to their child and he did not want to leave
* his second period of AWOL service occurred when he was in the stockade – he saw an opportunity to leave and did so
* he requested a Chapter 13 discharge from the Army

3.  The applicant provides the following documents, arranged chronologically:

* Standard Form (SF) 88 (Report of Medical Examination), dated 13 March 1969
* DD Form 47 (Record of Induction), dated 20 May 1969
* SF 88, dated 30 June 1971
* SF 89 (Report of Medical History), dated 30 June 1971
* SF 603 (Health Record – Dental), undated
* DA Form 20 (Enlisted Qualification Record) 
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 2 copies
* a letter from the National Personnel Records Center, St. Louis, MO, dated 4 October 2013 
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 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 20 May 1969, the applicant was inducted into the Army of the United States.  He completed his initial entry training and was awarded military occupational specialty 12A (Pioneer).  The highest rank/grade he attained during his period of military service was private first class (PFC)/E-3.

3.  On or about 11 October 1969, following the completion of his initial entry training, he was assigned to Company C, 82nd Engineer Battalion, Bamberg, Federal Republic of Germany. 

4.  His record shows he was AWOL as follows:

* on or about 12 January 1970, his unit reported him AWOL
* on or about 9 February 1970, his unit reported him dropped from the rolls
* on or about 13 April 1970, he was returned to military control and confined at the U.S. Army Special Processing Detachment, U.S. Army Armor Center, Fort Knox, KY
* on or about 7 May 1970, he was again reported as AWOL
* on or about 19 May 1971, he was returned to military control 

5.  Presumably, court-martial charges were preferred against him, based on his AWOL service.  However, his record is void of a DD Form 458 (Charge Sheet); therefore, it is not available for review with this case.

6.  On 22 June 1971, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the uniform code of military justice, the possible effects of an undesirable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

7.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

8.  On 26 July 1971, the separation authority approved his request for discharge and directed the applicant be issued an Undesirable Discharge Certificate.

9.  On 13 August 1971, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 8 months and 24 days of total active service; however, he had 486 days of time lost due to being AWOL, prior to his expiration term of service (ETS), and he had 60 days of lost time subsequent to his normal ETS date.

10.  His record is void of documentation that shows he requested discharge under the provisions of Army Regulation 635-200, chapter 13.

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

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

   a. Chapter 10 of the regulation in effect at the time provided for the separation of enlisted Soldiers for the good of the service, in lieu of trial by court-martial.  It stated, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes 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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was considered appropriate.

   b. Chapter 13 of the regulation in effect at the time provided for the separation of enlisted Soldiers for unfitness.  It stated, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

   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.  The applicant's request for an upgrade of his undesirable discharge was carefully considered; however, there is insufficient evidence to grant his request.

2.  His record shows he was AWOL for an extended period of time.  Although not present in his record, it is presumed he was charged with court-martial charges since 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.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  He contends he requested to be discharged under the provisions of Army Regulation 635-200, chapter 13; however, such discharges were not voluntarily requested by Soldiers, and their characterization did not differ from those characterizations imposed on Soldiers who were discharged under the provisions of Army Regulation 635-200, chapter 10.  Both discharge types, during the period in which the applicant was discharged, warranted the issuance of an under other than honorable conditions discharge and an Undesirable Discharge Certificate.

5.  Based on his extended period of AWOL service, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a discharge upgrade.

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)                                         AR20130020563



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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