IN THE CASE OF:	  JONES, ALVIN L.

		BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140005573 


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 he completed basic training but never completed advanced individual training either at Fort Sill, OK or Fort Leonard Wood, MO due to a brief absence without leave (AWOL).  He explains that while at Fort Leonard Wood his sister told him that a mad man threatened and attempted to murder his mother.  Upon hearing this information, he went AWOL from February 1969 to August 1971 to assist his mother and family members.  In early August 1971 he arrived at Fort Meade, MD after hearing that discharges were being issued.  He was told he would be issued an undesirable discharge, but it would be automatically upgraded to a general after 6 months.  He lists his trouble with the law and stated that he was convicted of aggravated robbery and served two prison terms -- two years for the first conviction and 25 years for the last one.  He says he needs his discharge upgraded to general to replace the void in his life.

3.  He provides his self-authored statement and DD Form 214 (Armed Forces of the United Stated 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.  The applicant was inducted into the Army of the United States on 8 April 1968.

3.  Summary Court-Martial Order Number 1, dated 31 July 1968, shows he was found guilty of failure to go at the time prescribed to his appointed place of duty on 28 July 1968.  His punishment consisted of hard labor without confinement for 7 days and restriction to his battery for 30 days.  

4.  Special Court-Martial Order Number 375, dated 7 September 1968, shows he was found guilty of being AWOL on three separate occasions:  1 to 15 August 1968; 0600 23 August to 0030 24 August 1968; and 0600 24 August to 0500 
26 August 1968.  His punishment consisted of confinement to hard labor for
6 months and a forfeiture of $68.00 per month for 6 months.

5.  The charge sheet and the complete discharge packet pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial are not contained in his available military records.  However, his records contain the following:

   a.  Two DD Forms 553 (Absentee Wanted by the Armed Forces).  The form dated 7 February 1969 shows the applicant went AWOL on 25 November 1968 and was dropped from the rolls on 26 December 1968.  The form dated 
22 September 1969 shows the applicant went AWOL on 26 December 1968 and was dropped from the rolls on 27 March 1969.  

   b.  A DD Form 616 (Report of Return of), dated 9 April 1969, shows the applicant was returned to military control on 9 April 1969.  His date of absence was listed as 26 December 1968.
   
c.  A 1st Endorsement to his request for discharge for the good of the service, dated 11 August 1971, shows that on 24 August 1971 the appropriate authority approved his request and directed that he be issued an Undesirable Discharge Certificate.

6.  On 24 August 1971, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 8 months and 11 days of net active service during this period.

7.  On 17 January 1974, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 1 April 1976, the ADRB returned the applicant's case without action citing that he completed an option letter stating that he would not be present.

8.  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, 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.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	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.  There are no provisions in the Army regulations for automatically upgrading a discharge after a period of time has elapsed.  The applicant must provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.  Therefore, his contention that his discharge should have been upgraded after 6 months based on information provided to him is not sufficient as a basis to upgrade his discharge now.

2.  Although a complete copy of the applicant's chapter 10 discharge packet is not in his available records, the presumption of regularity must be applied.  He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

3.  His discharge under the provisions of chapter 10, Army Regulation 635-200, indicates that he voluntarily requested discharge in lieu of a trial by court-martial, although the specific offense(s) is/are unknown.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis for granting 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)                                         AR20140005573





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ABCMR Record of Proceedings (cont)                                         AR20140005573



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