IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010499 


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 an honorable discharge.

2.  The applicant states: 

	a.  He did not go absent without leave (AWOL).  He was on leave from Fort Dix, NJ, and awaiting orders but the orders never arrived.  

	b.  He called Fort Dix and was told to go to Fort Leonard Wood, MO.  After reporting to Fort Leonard Wood, he was told that he did not belong there.  

	c.  He went to the bus depot and took a bus home.  After arriving home, he called 3 or 4 times in order to find out what his situation was.  When that did not work, he went to a lawyer and told him his story.  

	d.  The lawyer then sent his green identification card somewhere and later, the Federal Bureau of Investigation (FBI) came to his house looking for him.  The FBI wanted to charge him with AWOL.  He told the FBI agent his story and the FBI agent advised him to turn himself in.  

	e.  He was ready to fight the charges but he changed his mind because he was told the process took too long and that he would have to stay there for a long time. 

	f.  He was married and he and his wife had a baby so he was not able to stay for a long time.  He was told that the fastest way to a discharge was to ask for an undesirable discharge.  

	g.  His address was incorrect in some Army records, which is probably why he did not receive the orders.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 19 April 1968.  

3.  On 21 October 1968, he was found guilty by a special court-martial of being AWOL from 4 August to 25 September 1968.

4.  An AWOL – Deserter Verification Sheet shows he departed AWOL on 
24 December 1968 and he remained AWOL until he surrendered to military authorities on 12 February 1976.

5.  On 17 February 1976, court-martial charges were preferred against him for the AWOL offense.  

6.  On 18 February 1976, he consulted with legal counsel and voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  

7.  In doing so, he acknowledged that the charges preferred against him under the Uniform Code of Military Justice (UCMJ) authorized the imposition of a bad conduct or dishonorable discharge; he was guilty of the charge against him; and he:

* could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

8.  On 1 March 1976, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of an Undesirable Discharge Certificate.  On 11 March 1976, he was discharged accordingly.  His DD Form 214 shows he accrued 2,657 days of lost time and that his service was characterized as under other than honorable conditions.

9.  There is no evidence in his military records that supports his contention that he was instructed to return home from Fort Dix, NJ and await orders.

10.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 14 March 1979.

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

	a.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, 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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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.

	b.  Paragraph 3-7a states 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 states 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 request for an upgrade of his under other than honorable conditions discharge was carefully considered and his contentions were noted.  

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge, he admitted he was guilty of the charge.

3.  His voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes a special court-martial conviction for AWOL, additional court-martial charges for AWOL, and 2,657 days of lost time.  Based on the seriousness of his offense and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  The applicant failed to show that his discharge process and/or the character of service he received were in error or unjust.  Therefore, there is an insufficient evidentiary basis for granting the applicant's request.

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)                                         AR20140010499



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ABCMR Record of Proceedings (cont)                                         AR20140010499



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