IN THE CASE OF:	  

		BOARD DATE:	  14 November 2014

		DOCKET NUMBER:  AR20140005967 


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

2.  The applicant states he was told he was receiving a general discharge but has since found out that it was a lie.  He requests that he be given an upgrade to a general discharge as he was originally informed.

3.  The applicant provides a one-page letter explaining 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.  The applicant enlisted in the Regular Army on 7 October 1965 for a period of 3 years and assignment to the U.S. Army Pacific.  He completed his basic training at Fort Jackson, South Carolina and was transferred to Fort Dix, New Jersey to undergo his advanced individual training as a supply clerk. 

3.  On 10 March 1966, nonjudicial punishment (NJP) was imposed against him for violating a lawful regulation by leaving Fort Dix without authority.

4.  He was transferred to Japan on 24 May 1966 and served there until he departed Japan on 10 February 1967 for assignment to Vietnam.  He arrived in Vietnam on 30 August 1967.

5.  On 25 January 1969, NJP was imposed against him for wrongfully obtaining and disposing of 25 cases of C-Rations.

6.  On 4 February 1969, NJP was imposed against him for being absent without leave (AWOL) from 2 February to 3 February 1969.

7.  On 24 March 1969, NJP was imposed against him for missing bed check.

8.  On 3 May 1969, he was convicted by a summary court-martial of being AWOL from 24 April to 28 April 1969.

9.  On 28 June 1969, charges were preferred against the applicant for being AWOL from 4 May to 24 May and 24 May to 16 June 1969 and unlawfully carrying a concealed weapon (switchblade knife).

10.  On 19 June 1969, after consulting with defense counsel, the applicant submitted a request for 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.

	a.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.

	b.  He admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.

	c.  He acknowledged he understood he could receive a discharge under other than honorable conditions (Undesirable Discharge) and he might be deprived of all benefits as a result of such a discharge.

	d.  He elected not to submit a statement in his own behalf.
11.  On 9 July 1969, the appropriate authority approved his request for discharge and directed he be issued an Undesirable Discharge Certificate. 

12.  On 11 July 1969, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 3 years, 4 months, and 6 days of creditable active service with 149 days of time lost due to AWOL.  At the time of his discharge he signed a letter indicting that he had been informed of the procedures for applying to the Army Discharge Review Board for an upgrade of his discharge.

13.  There is no evidence in the available records that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is 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.  The applicant's 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 with no indication of any violations of his rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  His contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief under the circumstances given his repeated misconduct, the extensive length of his absences in a war zone, and his otherwise undistinguished record of service.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting him 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)                                         AR20140005967





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ABCMR Record of Proceedings (cont)                                         AR20140005967



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