BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140000597 


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.  He states he was forced to resign because of bias and prejudice in his unit.

3.  The applicant did not provide any additional documentation. 

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.  His military personnel record shows he enlisted in the Regular Army on 20 June 1969 for 3 years.

3.  During the period 23 July 1969 through 30 November 1972, the applicant received eight nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  His infractions included:

* absenting himself from his place of duty without proper authority
* going absent without leave (AWOL) from his unit
* failing to obey lawful orders

4.  His record contains Summary Court-Martial Order Number 16, dated 
5 January 1971.  This order shows he pled guilty and was found guilty of being AWOL from on or about 6 December 1970 to on or about 31 December 1970.  He was sentenced to a forfeiture of pay for 1 month and reduction in grade. Sentence was adjudged on the same date

5.  On 18 June 1973, he was charged with two specifications of being AWOL.  As a result, he voluntarily submitted a request for 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, he stated he:

* was making the request of his own free will and had not been subjected to coercion whatsoever by any person
* understood he could be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate
* understood that as the result of issuance of such a discharge, he could be deprived of many or all Army benefits he might be eligible for, he might be ineligible for many or all benefits administered by the Veterans Administration (VA)
* might be deprived of his rights and benefits as a veteran under both Federal and State laws
* understood he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

6.  He consulted with counsel and was fully advised of the nature of his rights under the UCMJ.

7.  His record also contains a Mental Status Evaluation, dated 20 June 1973, which shows his behavior was normal; he was fully alert and oriented; his mood was level; his thinking clear; thought content normal; and memory good.  There was no mental illness noted and he met the retention standards at the time.

8.  The applicant's chain of command unanimously recommended approval of his request for discharge and issuance of an Undesirable Discharge Certificate.  His company commander stated the applicant had shown beyond a doubt that he had absolutely no desire or intention of performing his military duties in a satisfactory manner.  His frequent absences and obvious failure to adjust to the ways of the military reflect an immature and irresponsible individual who has no business or position within the ranks of the military service. 

9.  On 29 June 1973, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed issuance of an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 19 July 1973 under the provisions of Army Regulation 635-200, chapter 10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 3 years, 9 months, and 26 days of total active service.

11.  His record shows he was awarded the Army Commendation Medal for achievement while serving in Vietnam and various other service medals.  There are no acts of valor documented nor is there any documentation that supports the applicant's claim of bias and prejudice.  It does show he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  On 20 December 1974, the ADRB determined he was properly discharged and denied his request for an upgrade of his discharge. 

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.

	b.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service, but the separation authority could have directed a general discharge or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

	c.  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.

	d.  Paragraph 3-7b states 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.  His contentions are noted and his entire record of service was reviewed.  There is no evidence in his military record and he has not submitted sufficient evidence that shows he was shown any bias or was a victim of prejudice by his unit.  However, it does show he went AWOL on numerous occasions and was tried by summary court-martial for at least one of his AWOL offenses.

2.  Notwithstanding the above, the evidence further shows the applicant was charged with an offense for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face trial by court-martial, he opted to submit a request for discharge for the good of the service.  His request was approved and he was discharged accordingly.  As such, his claim that he was forced to resign is not supported by the evidence. 

3.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that at the time he requested discharge.  The reason for discharge and the characterization of service were both proper and equitable.

4.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his 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 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)                                         AR20140000597





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ABCMR Record of Proceedings (cont)                                         AR20140000597



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