IN THE CASE OF:    

		BOARD DATE:  26 March 2015	  

		DOCKET NUMBER:  AR20140012946 


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 undesirable discharge to an honorable discharge.

2.  The applicant states:

* his personnel and finance records disappeared 30 days after reporting to the Personnel and Finance Office at Fort George G. Meade, MD
* he received only one pay within 6 months
* he went absent without leave (AWOL) for a job in order to take care of his family 

3.  The applicant provides a copy of 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.  The applicant enlisted in the Regular Army on 18 July 1967.  

3.  On 7 May 1968, he was convicted by a summary court-martial of being AWOL from 3 January to 25 April 1968.  He was sentenced to restriction to the company area for 30 days and a forfeiture of $25.00 pay for 1 month.  This period of AWOL is not recorded on his DD Form 214.  

4.  He served in Vietnam from 9 May 1968 to 9 May 1969.

5.  On 10 December 1969, he was convicted a second time by a summary court-martial of being AWOL from 14 November to 5 December 1969.  He was sentenced to restriction to the limits of Service Company, U.S. Army Garrison, Fort George G. Meade for 7 days and a forfeiture of $10.00 pay for 1 month.

6.  On 5 May 1970, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for two specifications of failing to go at the time prescribed to his appointed place of duty on 30 April and 1 May 1970.

7.  On 15 December 1970, charges were preferred against him for being AWOL from 11 July to 3 December 1970.

8.  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, chapter 10.  In doing so, he acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge were issued.  He did not submit statements in his own behalf.  

9.  On 11 January 1971, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10 with an undesirable discharge and he was reduced to the lowest enlisted grade.

10.  His DD Form 214 shows that on 11 January 1971 he was discharged under other than honorable conditions after completing 3 years and 7 days of creditable active service with approximately 167 days of time lost.  He was given an Undesirable Discharge Certificate

11.  His service record doesn't indicate he applied to the Army Discharge Review Board within that board's 15-year statute of limitations.
12.  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 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 an individual who was discharged for the good of the Service.  

13.  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.

14.  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.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant's record shows multiple periods of AWOL, which is punishable under the UCMJ with a punitive discharge.  He received one Article 15, two convictions by a summary court-martial, and had approximately 167 days of lost time.  

3.  He contends he went AWOL for a job in order to take care of his family.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or 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)                                         AR20140012946





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140012946



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1