IN THE CASE OF:	  

		BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140006083 


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 fully honorable discharge.

2.  The applicant states, in effect, he desires his discharge to be upgraded to fully honorable so that his grandchildren can see a flag on his coffin and not for any veterans benefits.  He wanted to serve his country honorably as his dad did in World War II; however, he was suffering from severe depression over his mother dying suddenly while he was on leave.  His father died when he was 13 years of age and he has recently been diagnosed as suffering from Post-Traumatic Stress Disorder (PTSD) and it has been attributed to have existed since he was 9 years of age.  He further states that he believes he was coerced into accepting his discharge and could not understand the consequences of his actions given the death of his mother.

3.  The applicant provides a one-page letter explaining his application, a copy of his DD Form 214 (Report of Separation from Active Duty), and a physician’s statement of disability.

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 in Boston, Massachusetts on      22 January 1975 for a period of 3 years and assignment to Fort Devens, Massachusetts.  He had listed that his mother lived in Arlington, Massachusetts.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a subsistence supply specialist at Fort Lee, Virginia and received orders transferring him to Fort Devens effective 17 May 1975.

3.  The applicant did not report as ordered and was reported as being absent without leave (AWOL) effective 18 May 1975.  He remained absent in desertion and, on 30 September 1975, he was issued a transportation request and was directed to report to Fort Dix, New Jersey immediately.  He did not comply and was apprehended by civil authorities in Burlington, Massachusetts on 9 October 1975, the day after his mother died.  He was granted 12 days of emergency leave based on a message received from the Red Cross.

4.  Charges were preferred against the applicant at Fort Dix on 23 October 1975.  During his personnel control facility interview he indicated that he had gone AWOL for personal family problems (mother was terminally ill) and that he did not request emergency leave.  He indicated that he desired to be separated immediately and did not desire rehabilitation.

5.  On 24 October 1975, 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 and he might be deprived of all benefits as a result of such a discharge.

	d.  He elected to submit a statement in his own behalf in which he stated that he had served less than 180 days of service and desired that to be considered.

6.  On 6 November 1975, the appropriate authority approved his request for discharge and directed he be issued an Undesirable Discharge Certificate. 

7.  On 19 November 1975, 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 was 20 years of age and had completed a total of 5 months and 16 days of creditable active service with 134 days of time lost due to AWOL.

8.  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.

9.  A search of GOOGLE maps indicates that the applicant’s home of record in Arlington, Massachusetts was less than 30 miles from Fort Devens.  Additionally, a review of his official records fails to reveal any information showing that he attempted to contact military officials to obtain assistance of any kind prior to going AWOL.

10.  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 sufficiently mitigating to warrant relief under the circumstances given the extensive length of his absences, the absence of evidence to show he took reasonable and diligent steps to notify military authorities, 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)                                         AR20140006083





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ABCMR Record of Proceedings (cont)                                         AR20140006083



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