IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140011926 


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, in effect, removal of entries in his military service records that indicate a duty status of "desertion" and an upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states that he voluntarily enlisted in the U.S. Army to fight in the Vietnam War.  He had orders to serve in Vietnam when President Nixon decided that no additional Soldiers would be sent there.

   a.  He states, "[b]y that time it was no longer a man's Army, illegal drugs were rampant, crime and fighting."

   b.  He requested a discharge and was told that it would be an undesirable discharge.  An Army officer also told him that after three years he could request a change to a general discharge.

   c.  Correspondence that he recently received from the National Personnel Records Center (NPRC) indicates the reason for his separation as "desertion," which is not correct.

3.  The applicant provides a copy of his discharge certificate and NPRC letter.

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 17 May 1971 for a period of 
2 years.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]), in pertinent part, that he was absent without leave (AWOL), as follows:

* from 20 January 1972 through 7 February 1972
* from 29 December 1972 through 7 January 1973
* from 21 February 1973 through 22 February 1973
* on 26 February 1973
* from 2 April 1973 through 30 April 1973
* from 1 May 1973 through 6 May 1973
* from 29 May 1973 through 4 June 1973

4.  Three DA Forms 188 (Extract Copy of Morning Report), dated 21 May 1973, show the applicant's duty status was reported, as follows:

* AWOL:  2 April 1973
* dropped from the rolls (DFR) – desertion:  1 May 1973
* returned to military control (RMC):  7 May 1973

5.  On 22 May 1973, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 2 April 1973 to 7 May 1973.

6.  On 22 May 1973, the applicant consulted with legal counsel.  He was informed of the charge 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 against him or of lesser included offenses therein contained, which also authorized the imposition of a punitive discharge.  He added that he understood that if his case was not referred to a court empowered to adjudge a punitive discharge, he still desired to submit his request for 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 furnished an Undesirable Discharge Certificate.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to submit a statement.

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

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

8.  On 6 June 1973, additional court-martial charges were preferred against the applicant for violation of the UCMJ:

* Article 86, for being AWOL from 29 May 1973 to 5 June 1973
* Article 134, for breaking restriction on 29 May 1973

9.  On 11 June 1973, the separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that he be issued an Undesirable Discharge Certificate.

10.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 29 June 1973 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 1 year, 11 months and 7 days of net active service during this period and he had 74 days of time lost.

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

12.  In support of his application the applicant provides the following documents.

   a.  DD Form 258A (Undesirable Discharge Certificate) that shows the applicant was discharged from the U.S. Army on 29 June 1973 as undesirable. The certificate was signed by Second Lieutenant D____ H. C____, Adjutant General Corps.

   b.  NA (National Archives and Records Administration) Form 13165 (Reply Regarding Social Security Inquiry), dated 13 June 2014, that shows the NPRC provided information to the Social Security Administration pertaining to the applicant's military service.  It shows the applicant served on active duty in the U.S. Army from "17 May 1971 to 29 June 1973," the character of his separation was "under other than honorable," and the reason for separation was "desertion."

13.  Army Regulation 630-10 (AWOL, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) establishes policies and procedures for reporting absences, special category absentees, personnel dropped from the rolls, and the surrender of military personnel to civilian law enforcement authorities.  The Glossary, section II (Terms), shows, in pertinent part: "Desertion:  A Soldier dropped from the rolls of his or her unit when:

* absent without authority for 30 consecutive days
* the Soldier fails to return to a unit from which he or she is AWOL after RMC at another location or departs prior to the completion of administrative, judicial, or nonjudicial action for a previous absence
* a member of the Armed Forces of the United States goes from or remains absent from his or her unit, organization, or place of duty with intent to remain away therefrom permanently (a violation of UCMJ, Article 85)

14.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

   a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the Official Military Personnel File (OMPF).
	
	b.  Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

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, 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 contends that entries in his military service records referring to "desertion" should be removed because they are not correct and his discharge should be upgraded to a general, under honorable conditions discharge because an Army officer told him that after three years he could request a change to a general discharge.

2.  Records show the applicant was AWOL for a period of more than
30 consecutive days; he was DFR of his unit as a result of the unauthorized absence; he RMC and then departed AWOL prior to the completion of administrative, judicial, or nonjudicial action for the previous unauthorized absence; and he was charged with two violations of the UCMJ, Article 85.

   a.  The evidence of record shows the above actions form a basis for a description of the term "desertion."

   b.  The applicant has not provided evidence of a clear and convincing nature that the military records in question are untrue or unjust, in whole or in part, thereby warranting their alteration or removal from his OMPF.
   
   c.  Therefore, there is an insufficient evidentiary basis for removing the requested record entries from his OMPF.

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.  Considering all the facts of the case, the reason for discharge and characterization of service were both proper and equitable.

4.  The applicant's contention that an Army officer told him that he could request a change to the character of his service (emphasis added) to a general, under honorable conditions discharge after a period of  three years following his discharge is not in dispute.  In fact, the applicant was entitled to make application to the ADRB for review of his discharge within its 15-year statute of limitations.  However, the evidence of record fails to show that he did so.

5.  During the period of service under review, the applicant was charged with offenses punishable by a bad conduct or dishonorable discharge, he had 74 days of time lost, he was reduced to private (E-1) prior to his discharge, and he failed to complete his 2-year enlistment obligation.  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 ageneral discharge.

6.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.

7.  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)                                         AR20140011926



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ABCMR Record of Proceedings (cont)                                         AR20140011926



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