IN THE CASE OF:	  

		BOARD DATE:	 3 February 2015 

		DOCKET NUMBER:  AR20140010906 


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 an upgrade of his discharge to an honorable discharge.

2.  The applicant states that he was inducted into the U.S. Army in the spring of 1970 and assigned to Fort Campbell, KY, for basic combat training (BCT).  Prior to graduating from BCT, he went absent without leave (AWOL) and returned to his parent's home in Cleveland, OH.

   a.  After his father learned what he had done, he convinced him to turn himself in.  They went to the Federal Bureau of Investigation (FBI) office in Cleveland and explained to an agent that the applicant was AWOL from the
U.S. Army.  The agent contacted the applicant's company commander at Fort Campbell.  The commander told the FBI agent that all of his Soldiers were present and accounted for.  The FBI agent recorded the information, told the applicant there was nothing more he could do, and advised him to go home.

   b.  He states that in 1971 he was charged with armed robbery and imprisoned by the State of Ohio.  He was paroled and released in June 1974.  During that same month, the FBI came to his house and arrested him for being AWOL from the U.S. Army.  He was taken to the FBI office where the agent pulled his file and saw where he had attempted to turn himself in several years earlier for being AWOL.  He was given an airplane ticket and advised to return to Fort Campbell.


   c.  Upon arriving at Fort Campbell, he was ordered back into uniform, given an assignment, and housed in a barracks (not the military stockade) for about four months.  He adds, "[w]hat I did not get was the due process of the [Uniform Code of Military Justice (UCMJ)], nor did I received [sic] one dime in pay during my four months [sic] stay Fort Campbell while waiting for my legal separation from the U.S. Army."

3.  The applicant provides a self-authored statement in support of his request.

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 8 April 1970 for a period of 
2 years.  At the time he was 19 years of age.

3.  On 20 April 1970, he was assigned to Company E, 7th Training Battalion, 
2nd Training Brigade, U.S. Army Training Center, Fort Campbell, KY for BCT.  

4.  An FBI memorandum, dated 6 October 1970, shows that, on 5 October 1970, Special Agent M____ E. H____ was advised by Captain R. T____, East Cleveland Police Department, that the applicant was turned over to Sergeant (SGT) L____ H____, Military Police (MP) Detachment, Cleveland, OH, on 6 June 1970.

5.  An FBI, Cleveland, OH, memorandum, dated 15 July 1974, shows the FBI located the applicant at his residence on 12 July 1974.  He acknowledged having been previously arrested (on 6 June 1970) by the East Cleveland Police Department and confined at the Cuyahoga County Jail.  It also shows:

   a.  on 6 June 1970, he was turned over to SGT L____ H____, 234th MP Detachment, Cleveland, OH.  SGT H____ was unable to determine the applicant's status as AWOL and the applicant was released from custody.
Further investigation revealed the applicant's AWOL status was cancelled on
(6 June 1970) when the applicant was arrested and turned over to the U.S. Army;

   b.  on 28 May 1971, he was again arrested by the East Cleveland Police Department and charged with armed robbery.  He was confined in the Cuyahoga County Jail, from 28 May 1971 until 9 May 1972, and transferred to Lucasville Prison to serve a sentence of 10 to 20 years following his armed robbery conviction;

   c.  on 27 June 1974, he was released from Lucasville Prison; and

   d.  on 12 July 1974, he was located at his parent's home by FBI agents, he surrendered to their custody, and an FBI agent notified Specialist Four M____ B____ of the 543rd MP Company, Cleveland, OH.

6.  On 12 September 1974, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL (with three specifications) from:

* 29 May 1970 to 27 June 1974
* 27 June 1974 to 12 July 1974
* 5 August 1974 to 31 August 1974

7.  On 16 September 1974, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge(s) against him or of lesser included offenses therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might:

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration
* be deprived of his rights and benefits as a veteran under both Federal and State laws
   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and reduced to the pay grade of E-1.

	d.  He was also advised that he could submit statements in his own behalf and he elected to submit a statement.

   e.  The applicant and his counsel placed their signatures on the document.

   f.  The applicant's statement shows he wrote, "I [applicant's name], enlisted in the Army because I thought it would make me a better person.  Then I had some home problems come up, which I've been having for the last 4 1/2 years and, if I don't get out of here soon, I will go AWOL again because I got to get home to help my people."

8.  On 19 September 1974, the applicant voluntarily requested to participate in the President's Clemency Program for Military Deserters.

   a.   He acknowledged that charges for violations of Article 86, UCMJ, occurring between 4 August 1964 and 28 March 1973 were preferred against him.  He requested a delay in the processing of the charges in his case by the general court-martial convening authority.

   b.  He acknowledged he understood that he would be issued an undesirable discharge, he may be required to perform alternate service as determined by the Joint Alternate Service Board, and that he would be required to reaffirm his allegiance to the United States of America.
   
   c.  The applicant and his counsel placed their signatures on the document.

   d.  Accordingly, the processing of his request for discharge for the good of the service in lieu of trial by court-martial was held in abeyance.

9.  On 8 October 1974, it was determined that the applicant was ineligible for the President's Clemency Program for Military Deserters.  As a result, his request for discharge for the good of the service was forwarded through the chain of command.

10.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an undesirable discharge.

11.  On 9 October 1974, he was placed in an excess leave (i.e., leave without pay) duty status pending the decision on his request for discharge.
12.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

13.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 29 October 1974 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, with an under other than honorable conditions characterization of service.  He had completed 4 months and 11 days of net active service during this period and he had 680 days of time lost prior to normal expiration term of service (ETS) and 853 days of time lost subsequent to normal ETS.

14.  A review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

15.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  Chapter 3, 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; and

   c. 	Chapter 3, paragraph 3-7b, 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 contends his discharge should be upgraded because he was not paid for a period of 4 months or given due process after he returned to military control at Fort Campbell while waiting for his "legal separation from the U.S. Army."

2.  The applicant enlisted in the U.S. Army on 8 April 1970.  Less than 2 months into his active duty service obligation, he left his duty station in an AWOL status and remained in an unauthorized (i.e., no pay due) duty status until he was returned to military control more than 4 years.  He then requested and was placed in an excess leave (i.e., leave without pay) status.  Thus, the sincerity of his comment that he was not paid is not in dispute; however, he provides insufficient evidence to demonstrate a claim to any specific period(s) during which he was authorized and entitled to pay, but not paid.

3.  The evidence of record shows that the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

   a.  Thus, the evidence of record does not support the applicant's contention that he was denied due process.  In fact, he acknowledges in his application to this Board of waiting for his "legal separation from the U.S. Army."
   
   b.  Therefore, considering all the facts of the case, the reason for discharge and characterization of service were both proper and equitable.

4.  During the period of service under review, the applicant was charged with offenses punishable by a bad conduct or dishonorable discharge, he did not complete any training, he completed less than 5 months of his 2-year enlistment obligation, he had 680 days of time lost (nearly 1 year and 11 months) prior to his normal ETS, and he was reduced to private (E-1) prior to his discharge.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

5.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.


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)                                         AR20140010906



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ABCMR Record of Proceedings (cont)                                         AR20140010906



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