IN THE CASE OF:	  

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140006978 


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 a discharge upgrade.

2.  The applicant states, in effect, he was told his discharge would be upgraded to a general under honorable conditions discharge after 7 years. 

3.  The applicant provides no additional evidence.

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 1 April 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13A (Cannoneer).  The highest rank/grade he attained while serving on active duty was private first class/E-3.
3.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 4 occasions:

*  26 January 1972, for leaving his appointed place of duty
* 1 March 1972, for being absent without leave (AWOL) from 
1 February 1972 through 26 February 1972
* 11 May 1972, for being AWOL from 2 March 1972 through 17 April 1972
* 22 June 1972, for being AWOL from 30 May 1972 through 
19 June 1972

4.  He was AWOL from 28 June through 8 December 1972.  He returned to military control on 9 December 1972 and was placed in the Personnel Control Facility at Fort Gordon, Georgia.

5.  His unit commander preferred court-martial charges for being AWOL from 
28 June through 8 December 1972 to the Court-Martial Convening Authority with a recommendation for a special court-martial.  The charge sheet is not available in the applicant's records

6.  On 13 December 1972, he consulted with counsel and 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 procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge under the provisions for the good of the service - in lieu of trial by court-martial.  He submitted no statements in his own behalf.

7.  In his request for discharge, he indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 11 January 1973, the unit commander recommended approval of his request for discharge in lieu of court-martial under the provisions of chapter 10, Army Regulation 635-200.

9.  On 15 January 1973, the separation authority approved his request for discharge in lieu of court-martial and directed the issuance of an Undesirable Discharge Certificate.  On 26 January 1973, he was discharged accordingly.

10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 1 month, and 10 days of active military service.  It also shows he had 235 days lost time.  

11.  On 10 May 1982, the Army Discharge Review Board denied his request for a discharge upgrade.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

   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 was discharged under the provisions of chapter 10, Army Regulation 635-200.  Discharges under this chapter are a result of a voluntary request for discharge in lieu of trial by court-martial.  Although the charge sheet is not available, the applicant's discharge packet is present.  There is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

2.  Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory.  Accordingly, there is no basis upon which to grant him an honorable or a general discharge under honorable conditions.

3.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

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)                                         AR20140006978





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ABCMR Record of Proceedings (cont)                                         AR20140006978



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