IN THE CASE OF:  	  

		BOARD DATE:  26 March 2015	  

		DOCKET NUMBER:  AR20140014630 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect:

* he could not stay in the Army because he could not read or write, only having a 3rd grade education
* the department within the Social Security Administration that administers Supplemental Security Income said he needed to apply for this upgrade
* he has painted most of his life and he still cannot read or write
* he does not know how to drive and has never held a driver's license

3.  The applicant provides a letter from his spouse.

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 was inducted in the Army of the United States on 29 January 1968.  After completing initial training, he was awarded military occupational specialty 94B (Cook).  The highest rank/grade held on active duty was 
private/E-2.

3.  He was awarded or authorized the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  On 6 May 1968, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for two specifications of failing to report to his appointed place of duty (failure to repair).  

5.  Special Court-Martial Order Number 1266, dated 9 December 1968, issued by Headquarters, U.S. Army Engineer Center Brigade, showed that pursuant to his guilty pleas the applicant was convicted of three specifications of being absent without leave (AWOL).  His punishment included reduction to private/E-1 and 4 months confinement at hard labor.  He was AWOL for the following periods:

* 5 July 1968 to 10 July 1968
* 18 July 1968 to 27 August 1968
* 6 September 1968 to 10 November 1968

6.  Special Court-Martial Order Number 386, dated 13 March 1969, issued by Headquarters, U.S. Army Engineer Center Brigade, showed the applicant was convicted of one charge of being AWOL from 16 December 1968 to 6 February 1969 and one charge of escaping lawful custody.  His punishment included reduction to private/E-1 and six months of confinement at hard labor. 

7.  He was sent to the U.S. Army Correctional Training Facility at Fort Riley, KS on or about 7 May 1969.  On or about 1 July 1969, the applicant was reassigned to Fort Monmouth, NJ, but never arrived.  He remained in an AWOL status from 3 July 1969 to 8 October 1969, when he returned to military control.

8.  On 17 October 1969, the applicant's commander preferred court-martial charges.

9.  On 12 November 1969, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

10.  In his request for discharge, he indicated he:

* had not been subjected to any coercion whatsoever by any person 
* understood the court-martial was authorized to impose either a bad conduct discharge or a dishonorable discharge
* understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

11.  On 8 January 1970, the separation authority approved his request for discharge in lieu of court-martial with the issuance of an Undesirable Discharge Certificate.  On 14 January 1970, he was discharged accordingly.

12.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  This form shows he completed 4 months and 20 days of net active creditable service and he had 566 days of lost time.

13.  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.

14.  The applicant provides a letter from his spouse which essentially, in brief, describes some of the difficulties she and the applicant have been experiencing.

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

	a.  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.  

	b.  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.

	c.  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's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request 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.

3.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Accordingly, there is an insufficient basis upon which to grant the applicant's request for 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)                                         AR20140014630





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ABCMR Record of Proceedings (cont)                                         AR20140014630



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