IN THE CASE OF:	   

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140000556 


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.

2.  The applicant states he was told his discharge would be upgraded to honorable after 6 months.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) and a welcome letter and certificate from Shriners International.

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 Regular Army on 18 May 1970, at 17 years of age and with parental consent.
3.  On 2 March 1971, nonjudicial punishment (NJP) was imposed against him under Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent from his place of duty from on or about 1030 hours on 1 March 1971 through on or about 1800 hours on 2 March 1971, in violation of Article 86 of the UCMJ.

4.  On 22 January 1972, NJP was imposed against him under Article 15 of the UCMJ, for being absent from his place of duty from on or about 0645 hours on 16 December 1971 through on or about 1600 hours on 29 December 1971, in violation of Article 86 of the UCMJ.

5.  On 26 May 1972, his commander notified his father of his extended absence from his unit since 25 May 1972.  His commander urged his father to convince him to return to his unit.

6.  On 26 May 1972, a flag was initiated against him to suspend favorable personnel actions.  The DA Form 268 (Report for Suspension of Favorable Personnel Actions) shows he was absent without leave (AWOL) from his unit on 0700 hours on 25 May 1972.  He was dropped from the rolls of his unit on 22 June 1972.

7.  On 23 June 1972, his commander notified his father of his extended absence from his unit since 25 May 1972, and how his absence had resulted in the Army declaring him a deserter from the U.S. Armed Forces.  His commander urged his father to persuade him to return to his unit voluntarily.

8.  A DA Form 2496 (Disposition Form), dated 23 June 1972, shows his commander rated his conduct and efficiency as "unsatisfactory."

9.  Special Orders Number 196, issued by Headquarters, Fort Carson, and Headquarters, 4th Infantry Division (Mechanized) on 14 July 1972, show he returned to military control and was assigned to the U.S. Army Personnel Control Facility (PCF) effective 29 June 1972.

10.  The applicant's records do not contain a copy of his complete discharge packet; however, his records contain a Disposition Form, dated 1 August 1972, subject:  Request for Discharge for the Good of the Service, which shows he requested discharge in lieu of trial by court-martial, after he was charged with being AWOL from 25 May 1972 to 29 June 1972 (35 days).  He had 56 days of lost time, including the present offense, and he was medically cleared for separation.  

11.  The PCF Commander recommended approval of his request for discharge for the good of the service and the issuance of an undesirable discharge.  The Staff Judge Advocate recommended he receive an undesirable discharge based on an evaluation of his past record, present attitude, rehabilitation prospects, and a review of his service records, including comments from his commanders.

12.  On 22 August 1972, he was discharged from the Army.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) , and he was assigned separation program number 246 (Discharge for the Good of the Service).  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.

13.  He provided a VA Form 21-4138, dated 13 December 2013, wherein he stated he enlisted in the U.S. Army in June 1970 at the age of 17.  While serving in Germany, he volunteered for assignment in Vietnam.  He remembers being very afraid.  In Vietnam he started taking drugs.  He was a scared young boy who made some very bad decisions.  After a time, he was sent for treatment in California where he watched men trying to take their own lives.  When he left California, he was sent to Fort Carson, Colorado, for more treatment.  After being drug-free for 30 days, he was allowed to go home for 30 days.  He got married during his 30-day leave and stayed gone for 60 days instead of returning to his unit.  He talked to the chaplain when he returned who recommended that he turn himself in.  He was confined to his post and given the option to complete his enlistment period (approximately 6 more months) or take an early discharge.  He made another bad decision and elected to leave.  He will always regret leaving this way – he lost his wife and his self-respect.  He does not blame his service in Vietnam.  He has lived with the shame of his hasty decision for 43 years.  He was told when he was discharged that he was eligible for an upgrade to an honorable discharge after 6 months.  He took faith in what he was told and respectfully requests an upgrade of his discharge to honorable.  He is now a Master Mason and a Shriner and is involved with his community.

14.  He provided correspondence and a certificate from Shriners International welcoming him as a member and certifying that he is a member in good standing.

15.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Chapter 10, in effect at the time of the applicant's separation, 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 the 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 was normally 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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he was told he was eligible for an upgrade to an honorable discharge after 6 months; however, there is no documentary evidence to support his contention.  

2.  The U.S. Army does not currently have nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in the character of discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.

3.  His contention that he was young and afraid is noted; however, there is no evidence that shows he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.  Therefore, his age is not a significantly mitigating factor to warrant upgrading his discharge.

4.  While his membership in Shriners International is noteworthy, his post-service conduct does not mitigate the circumstances under which he was discharged.

5.  The evidence of record shows he was AWOL from 16 December 1971 to 29 December 1971 and from 25 May 1972 to 29 June 1972.

6.  Although his records do not contain a copy of his complete discharge packet, administrative regularity is presumed in that discharges of this nature are voluntarily requested for the good of the service, in lieu of trial by court-martial, and he acknowledged the possible and probable effects of such a request.

7.  It must also be presumed that he 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.  The applicant's discharge accurately reflects his overall record of service.

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)                                         AR20140000556



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ABCMR Record of Proceedings (cont)                                         AR20140000556



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