IN THE CASE OF:	  

		BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130021633 


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 (UD) to an honorable discharge.

2.  The applicant states he believes the record to be in error because they did not build a case against him.  It never went to court and was never proven.  Someone from the Department of Veterans Affairs (VA) advised him that he had received a raw deal and should request a review.

3.  The applicant provides a copy of his 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2.  The applicant was inducted into the Army of the United States on 16 November 1967.  He served as a textile and leather repairman.  He was advanced to pay grade E-2 on 2 February 1968.  

3.  On 30 March 1968, he was reported absent without leave (AWOL) and was dropped from the rolls of his organization on 13 May 1968.  

4.  On 18 June 1969, he was apprehended by the Federal Bureau of Investigation and was returned to military control on 19 June 1969 and placed in confinement.

5.  Following his return from AWOL, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Special Processing Battalion, Fort George G. Meade, MD.  The applicant was charged with one specification of being AWOL from 30 March 1968 through on or about 18 June 1969.

6.  On 30 June 1969, he requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged that he had not been subjected to coercion with respect to that request for discharge and he had been advised of the implications that were attached to it.  He also acknowledged that he could be discharge under other than honorable conditions and furnished a UD Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

7.  On 14 July 1969, the Commander, Special Processing Battalion, recommended approval of the applicant's discharge.  

8.  On 22 July 1969, the separation authority approved the applicant’s request and directed the issuance of a UD and reduction to pay grade E-1.

9.  Accordingly, he was discharged on 22 July 1969.  He was credited with completing 4 months and 14 days of net active service and 478 days of time lost. He was issued a UD Certificate.

10.  On 28 February 1973, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  A UD Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation       635-200 are voluntary requests for discharge in lieu by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct during his short period of service diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the 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)                                         AR20130021633





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ABCMR Record of Proceedings (cont)                                         AR20130021633



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