BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130022349 


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 discharge under other than honorable conditions.

2.  The applicant states:

	a.  He joined the Army at age 17 with his mother's consent.  The Army messed up his assignment orders two times after basic training.  He joined with the guarantee for his desired advanced individual training (AIT), but he was not sent to his ordered AIT.  He was sent to two wrong locations before he got to Fort Bragg, NC.

	b.  His mother passed away on Christmas Eve.  He and his brother have never gotten along because his brother was turned down at the induction center for having double knee surgery.  His brother shredded all of his military records 6 years ago.

	c.  He is proud to be an American and was more than glad to serve in the military.  He was stationed at Fort Bragg with the 1st Battalion (Airborne), 325th Infantry Regiment, 82d Airborne Division.  He feels it is unjust that he just received a copy of his DD Form 214 (Report of Separation from Active Duty) in November 2013.

	d.  He is only asking for a proper discharge upgrade.  He has stage IV cancer and wants basic veterans' medical and housing benefits and any back pay for his service to the United States.

3.  The applicant provides a copy of his DD Form 214.

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 U.S. Army Reserve Delayed Entry Program (DEP) on 4 January 1973 at 17 years of age with parental consent.  His DA Form 3286-32-R (Statements for Enlistment – DEP) shows he enlisted for airborne training.  He was discharged from the DEP on 11 January 1973 for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 12 January 1973.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 12 January 1973, shows he enlisted for airborne training/duty.

3.  He completed basic training and was reassigned to Aberdeen Proving Grounds, MD, for AIT on 30 March 1973.  He was further reassigned to Fort Sill, OK, for AIT on 14 April 1973.  He was again reassigned to Fort Polk, LA, for AIT on 21 May 1973.  He completed AIT on 13 July 1973 and was awarded military occupational specialty 11B.  He was then reassigned to Fort Benning, GA, for basic airborne training.  He completed airborne training and he was assigned to Company C, 1st Battalion (Airborne), 325th Infantry Regiment, 82d Airborne Division, on 7 September 1973.

4.  He was reported as absent without leave (AWOL) effective 5 November 1973 and he was dropped from the rolls (DFR) of the unit on 5 December 1973.  He returned to military control on 22 March 1974.

5.  He was again reported as AWOL effective 30 March 1974 and he was DFR on 1 April 1974.  He returned to military control on 9 April 1974.  The corresponding DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the applicant was wanted by civil authorities for automobile theft and felonious assault on a police officer in Arlington, VA.

6.  A letter from the Chief, Individual Legal Assistance Team, Office of the Judge Advocate General, Headquarters, Department of the Army, dated 30 May 1974, states that office was attempting to assist the applicant who was being held as a material witness by the State of Virginia.  The applicant was turned over to civilian authorities by the Personnel Control Facility, Fort Gordon, GA.  Prior to being arrested and being brought to Fort Gordon, the applicant was AWOL from the Personnel Control Facility, Fort Meade, MD, where he had initiated separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  The Individual Legal Assistance Team Chief had procured the applicant's waiver forms to submit while he was incarcerated and enclosed the applicant's request for discharge for the good of the service.

7.  The applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He stated he understood he could request discharge because charges had been referred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  He was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He had been advised of the implications that were attached to his request.  He acknowledged he was guilty of the charge(s) against him or of lesser-included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  He did not desire further rehabilitation under any circumstances and he had no desire to perform further military service.  He had consulted with counsel who had fully advised him of the nature of his rights under the UCMJ.  He understood that if his request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He understood the possible effects of an undesirable discharge.  As a result of such a discharge, he would be deprived of many or all Army Benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He did not indicate he would submit statements in his own behalf.

8.  His complete discharge packet is not contained in his military records.  However, his records do contain orders discharging him under other than honorable conditions effective 8 August 1974 under the provisions of Army Regulation 635-200, chapter 10, and a memorandum stating the reason for his separation from active duty was conduct triable by court-martial.

9.  His DD Form 214 shows he was discharged under other than honorable conditions on 8 August 1974 under the provisions of Army Regulation 635-200, chapter 10.  He completed 10 months and 15 days of creditable active service.

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

	a.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	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 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's contention that he was sent to two wrong locations for AIT before he got to Fort Bragg was noted.  His enlistment contract specified airborne training; it did not specify MOS training.  His records show he was, in fact, sent to three different installations for AIT before completing training and being awarded an MOS.  His records are void of the reasons for these reassignments.  Upon completion of AIT, he was reassigned to Fort Benning for basic airborne training in compliance with his enlistment contract.  He was then assigned to the 1st Battalion (Airborne), 325th Infantry Regiment, 82d Airborne Division, at Fort Bragg.

2.  He was AWOL on two separate occasions.  Following the second period of AWOL and return to military control, he was turned over to civil authorities for charges of automobile theft and felonious assault on a police officer and held in civil confinement.  While in civil confinement, he 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.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  In view of the foregoing evidence, the applicant is not entitled to an honorable or a general discharge.

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)                                         AR20130022349



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ABCMR Record of Proceedings (cont)                                         AR20130022349



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