IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140013092 


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 a general discharge.

2.  The applicant states, in effect:

* he made a mistake and has been paying for it for the last 38 years
* he stored away all his gear, went home, and felt that all he had to do was return within 24 hours
* he went home because his mother had breast cancer and his younger brothers were out of control
* he stayed longer than he should have and he got scared because he was told he could go to military prison
* due to being absent without leave (AWOL), he was arrested and taken to Fort Sill, OK 
* an officer told him to take an undesirable discharge and that he could go home the same day
* his mother passed away from her illness
* on 5 August 2004, a physician told him that he appeared to be depressed
* on 12 October 2004, he underwent a consultative mental health exam
* on 22 May 2008, he was told he was unable to make sound decisions
* when he joined Battle Buddies, he became aware that he had options besides going to prison; he believes his defense council misrepresented him
* he is serving a 75-year prison sentence and is only 58 years old
* he feels that he deserves a second chance at life and his undesirable discharge is haunting him
* he requests a mental health consultation with the Department of Veterans Affairs (VA) and that his Notice of Decision from the Social Security Administration (SSA) be presented to the Board

3.  The applicant provides a/an: 

* DD Form 214 (Report of Separation From Active Duty)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* two Standard Forms (SF) 93 (Report of Medical History)
* Notice of Decision from the SSA
* self-authored statement
* two letters
* Special Orders Number 72, dated 13 March 1975

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 (RA) on 9 August 1974.

3.  He submitted two SFs 93, dated:

	(1)  6 March 1974, in which he stated that he was in good health and had no medical issues; and 

	(2)  26 February 1975, in which he stated that he was in good health.

4.  The applicant’s record contains a DD Form 458 (Charge Sheet), dated 
10 February 1975, that shows court-martial charges were preferred against him for one specification of being AWOL from 31 October 1974 to 13 February 1975.
5.  On 21 February 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniformed Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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 for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit a statement in his own behalf.

6.  His record contains an SF 93 (Report of Medal Status Evaluation), dated 
26 February 1975, that shows a mental status evaluation cleared the applicant for any administrative action deemed appropriate by his chain of command.

7.  The applicant's unit commander subsequently recommended approval with the issuance of an undesirable discharge.

8.  On 13 March 1975, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate).

9.  On 13 March 1975, the applicant was discharged accordingly.  

10.  He submitted Special Orders Number 72, dated 13 March 1975, which confirms he was discharged on the date of these orders and received a DD Form 258A.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The applicant submitted:

   a.  A Notice of Decision, dated 22 May 2008, from the SSA, which informed him that a favorable decision had been made in his case.

	b.  Two letters from the Battle Buddies of Oklahoma, dated 8 May and 31 July 2013, showing he requested membership in that organization.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.  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 shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  His service records show he was AWOL for a total of 133 days and court-martial charges were preferred.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for other programs or benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.

4.  In view of the foregoing evidence, there is an insufficient basis for granting him a general or an honorable discharge.

5.  The applicant requested a mental health consultation with the VA.  However, he should contact the VA concerning this issue.  The VA does not operate under the jurisdiction of this Board.
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)                                         AR20140013092



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013092



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1