IN THE CASE OF:  	  

		BOARD DATE:  7 October 2014	  

		DOCKET NUMBER:  AR20140003302 


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 to a fully honorable or general, under honorable conditions discharge.  

2.  The applicant states he admits his discharge resulted from an alcohol problem he had during his military service.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 August 1971.  

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 24 June 1969, the applicant enlisted in the Regular Army.  On 25 February 1970, he reenlisted for a period of 4 years.  

3.  He accepted nonjudicial punishment (NJP) on 29 July 1970 for failing to go at the time prescribed to a unit formation.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) during the following periods:

* 4 August 1970 - 1 December 1970
* 3 December 1970 - 15 January 1971
* 3 February 1971 - 21 February 1971
* 23 February 1971 - 2 March 1971
* 9 March 1971 - 1 July 1971

5.  On 2 July 1971, court-martial charges were preferred against him for the AWOL offenses.  

6.  On 15 July 1971, he consulted with legal counsel and 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, under circumstances that could lead to a bad conduct or dishonorable discharge.  

	a.  He indicated that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be deprived of many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  

	b.  He acknowledged he understood that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

	c.  He elected not to submit a statement in his own behalf.

7.  On 10 August 1971, the appropriate authority approved his request and directed he receive an Undesirable Discharge Certificate.  On 26 August 1971, he was discharged accordingly.  His DD Form 214 shows he accrued 331 days of lost time.

8.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10, 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, 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 would normally be 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's request for an upgrade of his undesirable discharge has been carefully considered.  

2.  The evidence of record confirms he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  It also shows that after consulting with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

3.  His voluntary request for discharge to avoid trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes NJP and 331 days of lost time.  Based on this record of indiscipline, and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service does not support an upgrade of the character of his service to fully honorable or to general, under honorable conditions.

5.  Based on the foregoing, there is no basis to grant the applicant's requested relief.  

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)                                         AR20140003302



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ABCMR Record of Proceedings (cont)                                         AR20140003302



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