IN THE CASE OF:  	  

		BOARD DATE:  30 September 2014	  

		DOCKET NUMBER:  AR20140003700 


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 an honorable discharge.

2.  The applicant states he should not have received an undesirable discharge when he was provided no legal representation whatsoever.  Since he was not provided legal representation and his military career was excellent, he feels his undesirable discharge was unjustified. 

3.  The applicant provides a self-authored statement and personally-selected documents from his military records.

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 was inducted into the Army of the United States on 24 April 1972.

3.  While in training at Fort Ord, CA, his record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 17 July 1972, for being absent without leave (AWOL) from his unit on 13 and 14 July 1972; failing to obey a lawful order; and for twice failing to go at the time prescribed to his appointed place of duty.

4.  His record contains Special Court-Martial Order Number 57, issued by Headquarters, 4th Combat Support Training Brigade, U.S. Army Training Command, Fort Ord, CA, dated 13 November 1972, which shows he pled guilty and he was found guilty of violating Article 86 of the UCMJ for being AWOL from his unit from 2 August to 6 September 1972 and from 21 September to 
17 October 1972.

5.  The evidence shows the applicant was apprehended under a warrant for robbery on 6 March 1973, at Fort Dix, NJ, and transported to the 5th Precinct Jail, Patchogue, NY.  

6.  His record shows he accepted NJP under the provisions of Article 15, UCMJ on 22 August 1973, for absenting himself from the U.S. Army Personnel Control Facility, Fort Dix, NJ, from 8 to 18 August 1973.

7.  On 21 December 1973, court-martial charges were preferred against the applicant for violating Article 86, UCMJ, for being AWOL from his unit from
6 September to 16 December 1973.

8.  On 26 December 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily 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.

9.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected to submit a statement in his own behalf.  The applicant stated he was drafted prior to his 26th birthday and he spent 5 years in the Merchant Marines and 3 years in Vietnam.  He had just married and had no idea of being drafted or joining the Army in any way.  He stated he had a lot of respect for the Army, but he could not live on the money he made in the Army.  His family came first and that is why he always left.  He further stated he knew an undesirable discharge would not help him in any way and he was not proud of it; however, he felt the Army would be better off without him.  His wife was about to have a baby and he did not see any way he could return to Army life and keep from going AWOL.

10.  On 7 January 1974, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 10 January 1974, the applicant was discharged accordingly.  He completed 1 year, 4 months, and 19 days of total active service with 126 days of time lost.

11.  On 26 February 1980, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  The applicant provides a self-authored statement in which he states:

   a.  After training he received orders to Germany.  While awaiting transportation at Fort Dix, NJ, he went home to Long Island, NY.  He was in an altercation and he severely beat a man and was subsequently arrested and jailed for approximately a year.

   b.  Upon his release he was picked up by the military police and returned to Fort Dix, NJ, where he was told he would receive an undesirable discharge.  He could not handle waiting for his discharge so he got into a car and went to his father's house in Albuquerque, NM.

   c.  After several weeks he was arrested and placed in the stockade at Fort Sill, OK.  He believes a lieutenant told him to sign a paper in order to be released as soon as possible; however, he was never informed he had a right to an attorney or that he had any choice in the matter.  He did not think it was fair that he was being punished a second time for something he did while in the civilian world.  He ultimately signed the paper and he has spent the past 40 years hating himself for doing it.  He truly loved the Army and enjoyed every day he was a Soldier. 




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

	a.  Chapter 10 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 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 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 states 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 contention that his undesirable discharge should be upgraded was carefully considered and determined to lack merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant's record of service shows he was frequently AWOL and he amassed 126 days of lost time.  Based on his record of indiscipline, the applicant's misconduct renders his service unsatisfactory.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or 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 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)                                         AR20140003700



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ABCMR Record of Proceedings (cont)                                         AR20140003700



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