IN THE CASE OF:	  

		BOARD DATE:	 16 December 2014 

		DOCKET NUMBER:  AR20140008179 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

   a.  His discharge was inequitable because it was based on one isolated incident in 18 months of service.  He is now in his 60s, indigent, and homeless.  The actions that led to his discharge were a mistake committed by a very young man.
   
   b.  He had a lapse in judgment while he was on pass to be with his pregnant spouse who was about to give birth to their first child.  While on pass, he was arrested by civilian authorities for riding in a stolen vehicle with a friend.  He states he had no prior knowledge that the vehicle was stolen.  The arrest led to him being absent without leave (AWOL) and he was subsequently discharged from the Army.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States 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.  On 8 February 1971, at age 19, the applicant was inducted into the Army of the United States.  He completed basic training and on 14 April 1971 he was assigned to Fort Polk, LA, for advanced individual training (AIT). 

3.  On 27 April 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification each of:

* failing to go to his appointed place of duty at the prescribed time on 17 April 1971
* assaulting a noncommissioned officer by using profane language on 26 April 1971

4.  He subsequently completed AIT and was placed on orders to the U.S. Army Overseas Replacement Station, Fort Dix, NJ, with a report date of 11 July 1971, for further assignment to the 21st Replacement Battalion, Germany.  On 18 June 1971, he departed Fort Polk.  

5.  He failed to report to Fort Dix and on 11 July 1971 he was reported as AWOL from his assigned unit.  On 9 August 1971, he was dropped from the rolls (DFR) of the Army as a deserter.

6.  On 10 April 1972, he surrendered to military police (MP) at the U.S. Army MP Detachment, Pittsburgh, PA.  Upon his return to military control, he was transported to the Allegheny County Prison, Pittsburgh, PA, pending further disposition.

7.  On 12 April 1972, he was transported to Fort George G. Meade, MD, and assigned to the Personnel Control Facility (PCF), Fort George G. Meade.

8.  On 27 April 1972, he was reported as AWOL from his assigned unit and on 8 May 1972, he was DFR as a deserter.  

9.  On 13 July 1972, he was returned to military control and assigned to the PCF, Fort George G. Meade.

10.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains Special Orders Number 168, dated 28 August 1972, issued by the PCF, Fort George G. Meade, assigning him to the Separation Transfer Point for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

11.  In addition, his DD Form 214 shows he was discharged on 29 August 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial (separation program number 246).  He received an under other than honorable conditions characterization of service and was issued an Undesirable Discharge Certificate.  He completed 7 months and 6 days of net active service with 351 days of lost time due to being AWOL and in confinement.

12.  His available record is void of any evidence that shows he was arrested and/or incarcerated by civilian authorities during any of the periods he was in an AWOL or deserter status.

13.  There is no evidence that 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.  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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

15.  Army Regulation 635-200, 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.

16.  Army Regulation 635-200, 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 record is void of the specific facts and circumstances surrounding his discharge processing.  However, the available evidence shows he was AWOL for almost 9 months at the time he was returned to military control and subsequently went AWOL again for almost another 3 months.  It is presumed he was subsequently 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 for the good of the service in lieu of trial by court-martial.

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  The applicant contends his discharge should be upgraded because he was young and had a lapse in judgment at the time of his service.  Records show he was 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  His available record shows his service did not meet the standards of acceptable conduct for Army personnel.  In addition, this misconduct would render his service unsatisfactory.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable 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)                                         AR20140008179



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ABCMR Record of Proceedings (cont)                                         AR20140008179



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