BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130021565 


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 he was 18 years of age when he was drafted.  He had never used alcohol or drugs before.  He asked the captain for help to get off "LSO" (unknown acronym, or possibly LSD (lysergic acid diethylamide)) but he was kicked out instead. 

3.  The applicant does not provide any 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 was born in January 1951.  At nearly age 19, on 18 December 1969, he enlisted in the Regular Army.  He was trained in and held military occupational specialty 11C (Infantry Indirect Fire Crewman). 
3.  On 3 June 1970, in Oakland, CA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 19 May to 2 June 1970. 

4.  On 27 July 1971, at Fort Riley, KS, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty at the time prescribed. 

5.  On 6 October 1971, also at Fort Riley, KS, he was convicted by a summary court-martial of one specification of breaking restriction and one specification of failing to be at his appointed place of duty at the time prescribed.  The court sentenced him to confinement at hard labor, reduction to E-1, and a forfeiture of pay.  The convening authority approved his sentence on the same date. 

6.  On 8 December 1971, he departed his unit in an AWOL status and on 6 January 1972, he was dropped from Army rolls as a deserter.  He ultimately returned to military control on 1 May 1972. 

7.  On 4 May 1972, his command preferred court-martial charges against him for one specification of being AWOL from 8 December 1971 to 1 May 1972. 

8.  On 4 May 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested 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 that:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the 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
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

9.  On 8 and 10 May 1972, his immediate, intermediate, and senior commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.  His immediate and senior commanders stated:  

* after a careful review of the applicant's records, in conjunction with his negative attitude toward honorable service, it was best that he be discharged 
* during a personal interview, the applicant stated he previously had a court-martial conviction and 4 instances of Article 15
* his attitude was poor and his recent offense of 145 days of AWOL was only terminated by apprehension 

10.  On 12 May 1972, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed that be reduced to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.  

11.  On 16 May 1972, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 1 year, 11 months, and 18 days of active service and he had 145 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15 year statute of limitations. 

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, 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, at the time, an undesirable discharge was normally considered appropriate.

	a.  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.

	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's request that his undesirable discharge be upgraded was carefully considered.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his arguments:

	a.  The applicant was not discharged because of drugs or alcohol, he was discharged because he was AWOL/a deserter. 

	b.  Although he was nearly 19 years of age when he enlisted, he was nearly 20 years of age when he went AWOL.  But there is no evidence he was any less mature than other Soldiers who successfully completed their service or that his extensive history of indiscipline was caused by his age. 

	c.  The Army has never had nor does it now have a policy wherein the characterization of service is changed, corrected, or upgraded because of age or the passage of time. 
	d.  There is nothing in the applicant's record that shows he was forced to choose the discharge.  He went AWOL by choice.  When presented with his options, he willingly chose the discharge.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his service to either honorable or a general.

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)                                         AR20130021565



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ABCMR Record of Proceedings (cont)                                         AR20130021565



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