IN THE CASE OF:	  

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140001690 


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 under other than honorable conditions discharge to a general discharge.

2.  He states although he has no documentation to corroborate his statement, it is not hard to believe that racism existed in Oklahoma in the1970's.  He explains while serving in the Oklahoma Army National Guard (OKARNG), he was activated after missing one drill when his enlistment was nearly completed.  He states:

* He enlisted in the OKARNG in July 1966
* Shortly thereafter, he found employment in McAlester, OK and going to drills was not a problem
* He was laid off and found employment 100 miles from McAlester
* He worked out a compromise with the previous first sergeant (1SG) who excused his absences and allowed him to make-up missed drills
* There was an ice storm on the weekend of a drill and he contacted the acting 1SG and requested to be excused from the drill, but he was denied
* He was given a 45-day notice to find another unit or be called to active duty
* He moved to Colorado prior to receiving his notice to report to active duty
* He was absent without leave from Fort Leonard Wood, MO 
* The active duty orders were sent to his parent's home and the orders were never received by him
* After being apprehended and taken to the Personnel Control Facility, he started using heroin
* After several weeks, he sought help from the Fort Carson, CO hospital 

3.  He provides:

* Self-authored statements
* Commander's interview, dated 5 October 1973
* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record 
of Service in the OKARNG and as a Reserve of the Army) 

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 OKARNG on 8 March 1966 for a period of 
6 years.  On 7 July 1966, he was ordered to active duty for training.  He was honorably released on 19 November 1966 and credited with completing 
4 months and 13 days of active duty service.

3.  Letters, dated as follows, Subject:  Unsatisfactory Participation, show:

* On 16 May 1970, he was notified of 3 unexcused absences within a one-year period
* On 8 March 1971, he was notified of 5 unexcused absences within a one-year period
* On 15 March 1971, he was notified of 7 unexcused absences within a one-year period

4.  In a letter, Subject:  Order to Involuntary Active Duty, dated 15 March 1971, he was notified that he was being ordered to active duty and was required to enter active service on or about 30 days after notification.

5.  A letter, Subject:  Transmittal of Records Ordering Individual to Active Duty, dated 18 March 1971, was sent to the applicant.  The letter stated that form letters for unsatisfactory participant, dated 16 May 1970, 8 March 1971, and also a form letter dated 15 March 1971 ordering him to involuntary active duty.  The letter further stated that his continued absences from regularly scheduled drills for the unit left no other choice other than ordering him to active duty.

6.  A letter, Subject:  Order to Active Duty, Right to Appeal, dated 20 April 1971, advised the applicant that he had been submitted for involuntary active duty as an unsatisfactory participant.  The letter explained that he had 15 days from the date of the letter to appeal.

7.  The applicant's record is void of any evidence to show he received any of the notification letters.

8.  On 23 July 1971, the applicant was assigned, but not joined to the U.S. Army Reception Station, Fort Leonard Wood, MO.  His status was subsequently changed to absent without leave (AWOL).  On 16 September 1971, he was dropped from the rolls.  

9.  On 30 March 1973, he was apprehended and returned to military control.

10.  On 3 April 1973, charges were preferred against him for being AWOL from 23 July 1971 to 30 March 1973.

11.  On 4 April 1973, after consulting with counsel, the applicant requested 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.

12.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all Veterans' Administration (VA) benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.

13.  In his statement, dated 5 April 1973, he said he felt the Army was degrading and it took away his right to be a man.  He added he did not feel that the Army could rehabilitate him and he should be granted a discharge based on the circumstances. 

14.  On 11 April 1973, the battalion commander recommended approval and the issuance of an Undesirable Discharge Certificate.

15.  On 15 June 1973, an acting assistant adjutant general returned without action the applicant's request for discharge for the good of the service.  He said an examination of the applicant's file disclosed that the government could not prove an inception date for the AWOL period.  He further stated that an opportunity was afforded the applicant through his defense counsel to make a statement concerning the situation, but he was unable to admit sufficient knowledge of the order to active duty to create a prima facie case.

16.  On 11 September 1973, after consulting with counsel, the applicant again requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  

17.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all VA benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.

18.  In his statement, dated 11 September 1973, he said his attitude toward the Army was poor.  He was unable to adjust to the military.  He further said he had no rehabilitation potential and that he would accept a chapter 10.

19.  On 1 October 1973, the unit commander stated that the applicant was on AWOL status from 23 July 1971 to 29 March 1973.  He said during the applicant's interview, he assured him of his desire to be discharged from the Army.  The unit commander recommended the applicant be discharged with an Undesirable Discharge Certificate. 

20.  In a self-authored statement, dated 5 October 1973, the applicant said on or about 7 July 1971, he was informed by his parents that he had received orders calling him to active duty.  He added he was aware that he would be in an AWOL status on 23 July 1971.

21.  On 18 October 1973, 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.

22.  On 21 November 1973, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, for the good of the service with an undesirable discharge.  He completed 4 months and 15 days this period with 23 July 1971 to 7 March 1972 and 8 March 1972 to 31 December 1972 listed as lost time prior to his normal expiration term of service date and from 1 January 1973 to 29 March 1073 and 30 May 1973 to 5 September 1973 subsequent to his normal expiration term of service date.

23.  On 9 April 1974, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 16 September 1976, the ADRB denied his request citing that he was properly discharged. 

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

	a.  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 VA 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.

	b.  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 evidence of record shows the applicant was informed of his unexcused absences on three separate occasions.  In a letter, dated 15 March 1971, he was also notified that he had 7 unexcused absences and he was being ordered to active duty.  The letter stated that he was required to enter active duty on or about 30 days after notification. 

2.  It is unknown whether he received the letters concerning his unexcused absences.  However, by his own admission he was in contact with both the 1SG and the Acting 1SG.  Based on this fact, he should have been well aware of his unexcused absences and the consequences of being an "unsatisfactory participant."  Therefore, his contention that he was called to active duty for missing one drill is not supported by the available evidence.

3.  Further, the evidence shows that on 5 October 1973 the applicant said on or about 7 July 1971 his parents informed him that he had received orders calling him to active duty.  He admitted that he was aware he would be in an AWOL status on 23 July 1971 if he failed to report for duty.

4.  The evidence of record shows he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.  The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20140001690





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ABCMR Record of Proceedings (cont)                                         AR20140001690



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