IN THE CASE OF:	  

		BOARD DATE:	 26 February 2015

		DOCKET NUMBER:  AR20140011124 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states at the time he was very much discriminated against for his sexual beliefs.  He hopes he can get a wrong made right as times have changed.

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 4 May 1970.  He completed basic combat training (BCT) and on 6 July 1970 he was assigned for advanced individual training (AIT) to the 1st Training Battalion, 1st AIT Brigade, Fort Sill, OK.

3.  On 15 July 1970, he was reported as absent without leave (AWOL) from his assigned unit.  On 22 July 1970, he was returned to military control at Fort Sill.

4.  On 22 July 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 15 to 22 July 1970.

5.  On 24 July 1970, he was reported as AWOL from his assigned unit and he was subsequently dropped from the rolls (DFR) as a deserter.  On 8 June 1971, he was apprehended and returned to military control at Fort Sill.  He was assigned to the Personnel Control Facility (PCF), Fort Sill.

6.  He was reported as AWOL from his assigned unit from 16 to 29 June 1971 and from 29 June to 29 July 1971 and he was DFR as a deserter.

7.  His record contains a commander's inquiry, dated 5 July 1971, wherein his immediate commander stated, in part, he conducted an inquiry into his AWOL and determined there were no known military or domestic reasons for the AWOL, he did not have any known problems with his superiors, and there was no other information that had a bearing on the case.

8.  In a letter to the applicant's spouse, dated 5 July 1971, his commander informed her that her husband had been DFR as a deserter, her benefits as a dependent had been discontinued, and if she knew of his whereabouts to encourage him to surrender to the nearest military authorities.

9.  On 28 July 1971, he was apprehended and returned to military control at Fort Leonard Wood, MO.  He was assigned to the PCF, Fort Leonard Wood.

10.  On 20 August 1971, he was reported as AWOL from his assigned unit and DFR as a deserter.  On 14 February 1972, he was apprehended and returned to military control at Fort Leonard Wood.

11.  On 29 February 1972, court-martial charges were preferred against him for one specification each of being AWOL from

* 24 July 1970 to 8 June 1971
* 16 to 29 June 1971
* 29 June to 28 July 1971
* 20 August 1971 to 14 February 1972

12.  On 1 March 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.

13.  On 1 March 1972, he requested 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.  In his request, he acknowledged that he had not been subjected to coercion with respect to his request for a discharge and had been advised of the implications that were attached to it.  He did not submit a statement in his own behalf.

14.  He further acknowledged that he understood if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He understood that as a result of such a discharge, he may be ineligible for many or all Amy benefits, many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both State and Federal laws.  He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

15.  On 6 March 1972, his immediate commander recommended approval of the applicant's request with the issuance of an Undesirable Discharge Certificate.  His commanded stated the applicant had demonstrated that he was unwilling to adjust to military service and any further disciplinary or rehabilitative action would be futile.  He had interviewed the applicant and in view of his statements, demeanor, and attitude, he believed his discharge would be in the best interest of the service.

16.  On 7 March 1972, his senior commander recommended approval of the applicant's request with the issuance of an Undesirable Discharge Certificate.

17.  On 8 March 1972, the applicant was reported as AWOL from his assigned unit.

18.  On 10 March 1972, the separation authority approved the applicant's request for a discharge and directed the issuance of an Undesirable Discharge Certificate.  On 13 March 1972, he was discharged accordingly.

19.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged 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 (SPN) 246), with an under other than honorable conditions characterization of service, and that he was in an AWOL status at the time of his discharge.  He completed 2 months and 17 days of net active service and had 602 days (or 1 year, 7 months, and 27 days) of lost time due to being AWOL and/or in confinement. 

20.  There is no evidence in his record that shows he was ever counseled for any reason related to any sexual or other personal beliefs.

21.  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.

22.  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 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.

23.  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.

24.  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 evidence of record confirms the applicant was 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 in lieu of trial by court-martial.

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The applicant contends his commander was prejudiced against him due to his sexual beliefs; however, his record is void of any evidence and he has not provided any evidence that shows that anytime during his military service any of his commanders were prejudged against him for any type personal beliefs he may have had at the time.

4.  The evidence of record confirms the applicant received NJP for being AWOL and then went AWOL on five additional occasions.  He had less than 3 months of net active service, had almost 2 years of lost time due to being AWOL and/or in confinement, and was in an AWOL status at the time of his discharge.

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, there is no basis for granting him 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)                                         AR20140011124





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ABCMR Record of Proceedings (cont)                                         AR20140011124



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