IN THE CASE OF: 

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130021332 


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 correction of his military records by upgrading his undesirable discharge to honorable and restoring his rank to specialist four, pay grade E-4 (SP4/E-4).

2.  The applicant states he had been unjustly incarcerated for a crime he had not committed.  He was considered as being absent without leave (AWOL) and was given a choice of a court-martial or a discharge under less than honorable conditions.  He was told by the Judge Advocate General (JAG) officer that his discharge would be upgraded in 1 year.  But it was not upgraded.  He has been employed by the State of Indiana, Putnam County and the city of Greencastle.  He had forgotten about being told his discharge would be upgraded after 1 year.

3.  The applicant provides copies of:

* Putnam County Court Minutes of the Court, for the period 5 February to   10 April 1973
* 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 26 August 1971, the applicant enlisted in the Regular Army.  He was awarded an infantryman military occupational specialty.

3.   The applicant accepted the following nonjudicial punishment (NJP):

	a.  8 November 1971: for failure to go to his appointed place of duty;

	b.  20 April 1972: for failure to go to his appointed place of duty; and

	c.  24 July 1972: for being absent without leave (AWOL) from 17 to 23 July 1972.

4.  The evidence provided by the applicant shows that the Putnam County Circuit Court issued a warrant on or about 5 February 1973 for the applicant’s arrest.  On or about 10 March 1973, he was found not guilty of the civilian charges.

5.  On 3 May 1973, charges were preferred under the Uniform Code of Military Justice (UCMJ) for AWOL from on or about 18 December 1972 to 13 April 1973.

6.  On or about 8 May 1973, the applicant consulted with legal counsel and 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.

7.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

8.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was 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 law.

9.  On 28 May 1973, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge.  On 1 June 1973, the applicant was discharged accordingly.  He had completed 1 year, 
4 months, and 15 days of creditable active duty service and had 143 days of time lost.

10.  On 3 May 1983, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, is a dishonorable discharge and confinement for 1 year.

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

   a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  An undesirable discharge was normally considered appropriate.
	


   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 (emphasis added), 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 applicant contends that his military records should be upgraded to honorable because he was unjustly incarcerated for a crime he had not committed.  He also contends that the JAG officer told him his discharge would automatically be upgraded to honorable after 1 year.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

4.  The applicant’s argument that he was unjustly incarcerated by civilian authorities does not change the fact that he was AWOL from his unit and that he voluntarily requested to be discharged in lieu of court-martial.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130021332



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ABCMR Record of Proceedings (cont)                                         AR20130021332



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