IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140000601 


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.  The applicant states his disability (speech impediment) subjected him to much harassment.  He was not accepted by most high-ranking officials, which caused him a lot of distress.  In the end, it was not possible for him to follow regulatory guidance set forth by the U.S. Army.

3.  The applicant provides a self-authored letter and 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 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.  On 17 May 1971, the applicant enlisted in the Delayed Entry Program of the U.S. Army Reserve (USAR).  He was discharged from the USAR and enlisted in the Regular Army on 30 June 1971.

3.  Headquarters, 5th Combat Support Training Brigade, U.S. Army Training Center, Infantry, Fort Dix, NY, Summary Court-Martial Order Number 72, dated 31 March 1972, shows the applicant was found guilty of violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit from on or about 0700 hours, 2 March 1972, and remaining so absent until on or about 1800 hours, 21 March 1972.  He was sentenced to confinement at hard labor for 21 days and forfeiture of $150.00 per month for 1 month.  The sentence was adjudicated on 31 March 1972 and approved on 31 March 1972.  He was held in confinement from 31 March 1972 through 16 April 1972.

4.  On 4 May 1972, he was reported as absent without leave (AWOL) from his unit.  On 31 May 1972, he was charged with violating Article 86 of the UCMJ; specifically, for absenting himself without authority from his unit from on or about 4 May 1972 and remaining so absent.

5.  On 1 June 1972, he was dropped from the unit rolls as a deserter.  On 18 August 1972, he returned to military control.

6.  On 6 September 1972, he was charged with violating Article 86 of the UCMJ; specifically, for absenting himself without authority from his unit from on or about 4 May 1972 and remaining so absent until on or about 18 August 1972.

7.  On 11 September 1972 after consulting with legal counsel, he requested discharge 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), chapter 10.  He stated he understood he would be discharged under other than honorable conditions and be issued an Undesirable Discharge Certificate if his request were accepted.  He acknowledged:

* 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
* he was furnished a list containing most Federal veterans' benefits and the effect of an undesirable discharge on each benefit
* he might expect to encounter substantial prejudice in civilian life by reason of an undesirable or general discharge
* he was advised not to accept an undesirable discharge with the expectation that it would later be changed to an honorable or a general discharge because the likelihood of that ever occurring was extremely remote

8.  On 18 September 1972, the discharge authority approved his request and directed his reduction to the lowest enlisted grade, his discharge under other than honorable conditions without delay, and the issuance of an Undesirable Discharge Certificate.

9.  On 4 December 1972, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 1 year and 16 days of active service.

10.  His DA Form 20 (Enlisted Qualification Record) shows he did not complete advanced individual training and he was not awarded a military occupational specialty.  This form also shows he was charged with lost time due to AWOL or confinement as follows:

* 2-21 March 1972 – AWOL – 19 days
* 31 March-16 April 1972 – confinement – 17 days
* 4 May-17 August 1972 – AWOL – 106 days

11.  On 17 April 1979 after careful consideration of his military records and all other available evidence, the Army Discharge Review Board (ADRB) determined that he was properly discharged and denied his request for a change in the type and nature of his discharge.

12.  On 13 July 1982, the ADRB reconsidered his request for a discharge upgrade and determined he was properly discharged and denied his request for a change in the type and nature of his discharge.

13.  He provided a letter to the Board, dated 11 December 2013, in which he stated he enlisted in the U.S. Army in May 1971 and excelled in basic training.  He believes his speech impediment held him back from finding a position where he could be successful.  He was placed under the authority of a drill sergeant who used every opportunity to make the Army impossible for him.  When the verbal abuse became unbearable, he made a foolish decision by being AWOL.  When he realized what he had done, the fear of reprisal kept him from voluntarily returning.  He accepted his punishment and went on to become a productive member of society.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he was harassed, due to his speech impediment, and his non-acceptance caused him a lot of distress.  However, there is no documentary evidence to support his contention.

2.  The evidence of record shows he was AWOL from 2 March 1972 until on or about 21 March 1972 and again from 4 May 1972 until on or about 18 August 1972.  He never completed initial entry training and he never served productively in a unit.

3.  He voluntarily requested discharge 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.

4.  The evidence shows 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.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his 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)                                         AR20140000601



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ABCMR Record of Proceedings (cont)                                         AR20140000601



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