BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130020610 


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 to general under honorable conditions.

2.  The applicant states:

	a.  he believes he was discharged for the wrong reason;

	b.  his request for a compassionate reassignment was denied so he went home; and

	c.  he was trying to do something for his family; he tried to help his brother and sister and he was punished for his action.

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 May 1974.  His records show he was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was advanced in rank to private (PV2) on 15 September 1974 and this was the highest grade he held on active duty.  He was reduced to the rank of private (PV1)/E-1 on 14 April 1975.

4.  Item 21 (Time Lost – Section 972, Title 10, U.S. Code) of his DA Form 2-1 shows he was reported as absent without leave (AWOL) on four separate occasions as indicated:

* 15-16 October 1974 (1 day)
* 24 February-4 March 1975 (9 days)
* 1-2 April 1975 (2 days)
* 3 September 1975-unknown

5.  On 8 December 1975, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 8 September-2 December 1975.

6.  On 10 December 1975, the applicant acknowledged the charge preferred against him for violating Article 86 of the Uniform Code of Military Justice (UCMJ).  Having consulted with legal counsel and having been 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 the procedures and rights available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

7.  In his request for discharge he acknowledged he understood he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life because of an undesirable discharge.  While he further elected not to submit a statement in his own behalf, he indicated he provided the following responses to his unit commander's questions voluntarily and of his own free will:

* he liked the Army but could not adjust to the Army
* he had no potential for rehabilitation
* he would willingly accept an undesirable discharge if issued
* he waived the 72-hour waiting period

8.  On 2 January 1976 after having considered the applicant's request, the separation authority approved his request and directed the issuance of an undesirable discharge under the provisions of Army Regulation 635-200, chapter 10.

9.  On 19 January 1976, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 5 months, and 14 days of total active service of which 93 days were lost time.

10.  On 10 March 1977 after having carefully reviewed the applicant's record and the issues he presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny his request for an upgrade.

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

	a.  Chapter 10 provides 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 a general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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 contends his undesirable discharge should be upgraded.  There is insufficient evidence to support this claim.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL from 3 September to 2 December 1975, totaling 91 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.  His service did not support a general discharge at the time of his separation and it would not be appropriate to upgrade his discharge now.

4.  In view of the foregoing, there is no 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 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)                                         AR20130020610



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ABCMR Record of Proceedings (cont)                                         AR20130020610



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