IN THE CASE OF:	  

		BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140003361 


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 his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states at the time he was under a lot of stress.  He was in the process of a divorce and his mother was in the hospital for throat cancer.  The only thing he could think of was to go absent without leave (AWOL) and try to figure things out.  After a year he returned to Fort Devens, MA to either finish his time or do time in the stockade.

3.  The applicant provides no additional evidence in support of his application.

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 27 November 1970, he enlisted in the Regular Army for 3 years.  On 
4 May 1971, he was assigned to Company B, 3rd Battalion, 7th Air Defense Artillery in Germany.  On 17 November 1971, he was promoted to specialist four/pay grade E-4.

3.  On 13 October 1972, court-martial charges were preferred against the applicant for being AWOL from on or about 1 December 1971 to on or about 
9 October 1972.

4.  On 14 October 1972, he voluntarily 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 acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* not making a statement in his own behalf
* advised he might be furnished an Undesirable Discharge Certificate

5.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

6.  On 10 November 1972, the appropriate authority approved the applicant's voluntary request for discharge and directed that the applicant be issued an Undesirable Discharge Certificate.

7.  On 17 January 1973, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He completed 1 year, 3 months, and 13 days of total active service that was characterized as under conditions other than honorable.  He had 313 days of time lost.

8.  He applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 21 June 1982, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.
9.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

	b.  .  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.  He contends he was undergoing a stressful time because of his pending divorce and his mother being in the hospital.  

	a.  There is no evidence he requested leave through his chain of command to see his mother while she was in the hospital.  At the time he went AWOL he had over a year on active duty and he was a specialist four.  Therefore, it is reasonable to conclude he was aware of procedures he had available to him, such as emergency leave, to see his mother.

	b.  Although it is unfortunate he was experiencing divorce proceedings at the time, unfortunately many Soldiers have faced this dilemma during their period of service.  However, these same Soldiers went on to complete their enlistments or careers and receive honorable discharges.  Therefore, the fact that he was going through a divorce cannot be used as a mitigating circumstance to upgrade a properly issued discharge.

2.  He had 313 days time lost.  Therefore, his service was unsatisfactory.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service. 
5.  Based on the foregoing, there is no basis for upgrading 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)                                         AR20140003361



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ABCMR Record of Proceedings (cont)                                         AR20140003361



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