BOARD DATE:	   26 August 2014

		DOCKET NUMBER:  AR20140000259 


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 to a general discharge under honorable conditions.

2.  The applicant states he was young and did not understand the long-term effects of a discharge under other than honorable conditions.  He admitted to smoking marijuana and just wanted to go back home.

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's records show he was born on 23 December 1952.  He enlisted in the Regular Army on 20 November 1972 at the age of 19 years and 11 months.  He held military occupational specialty 51R (electrician).  The highest rank/grade he attained while serving on active duty was private
(PV2)/E-2.  However, at the time of his separation he held the rank grade of private (PVT)/E-1.

3.  Item 44 (Time Lost Under Section 972, Title 10 United States Code and Subsequent to Normal Date of Expiration Term of Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was charged with 97 days of lost time for being absent without leave (AWOL) on six occasions.

4.  His disciplinary history includes his acceptance of field grade level NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for departing his unit in an AWOL status.

5.  On 26 November 1973, the applicant underwent a psychiatric evaluation pursuant to administrative action.  Direct examination and review of his past history revealed no indication of psychiatric disorder that would prevent administrative action.  It was determined that he was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board action and proceedings.

6.  The applicant departed his unit in an AWOL status on 27 November 1973 and remained so absent until he surrendered to civilian authorities.

7.  A DD Form 458 (Charge Sheet) charge, dated 23 January 1974, shows court-martial charges were preferred against the applicant for violating Article 86 of the UCMJ by departing his unit in an AWOL status on or about 27 November 1973 and remaining so absent until on or about 16 January 1974.

8.  The applicant consulted with legal counsel and he 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 undesirable discharge, and the procedures and rights available to him.

9.  On 25 January 1974, following counseling, the applicant submitted a voluntary written request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of an undesirable discharge.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant indicated his intention to submit a statement in his own behalf, but there is not statement present in his record.

10.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of an Undesirable Discharge Certificate.

11.  On 7 March 1974, the applicant was discharged accordingly.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version 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, 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 an individual who was discharged for the good of the Service. 

14.  Army Regulation 635-200, 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 his discharge should be upgraded was carefully considered.

2.  His record shows he was just shy of 20 years of age when he enlisted and 20 and 21 years of age at the time of his offenses.  However, there is no 




evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140000259



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ABCMR Record of Proceedings (cont)                                         AR20140000259



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