BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140014944 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge (GD).

2.  The applicant states:

* he needs to have his UOTHC discharge upgraded to a GD as it was originally recommended
* he got impatient and went absent without leave due to family hardship
* it was said that after 7 years his UOTHC discharge could be changed to a GD     

3.  The applicant provides a memorandum, subject:  Army Discharge Review Board, dated 14 June 1973; his undesirable discharge certificate; a certificate of training; and a statement from a defense counsel. 

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.  On 9 August 1972, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions:

* 20 December 1972 for being AWOL on 18 December 1972 to    
* 11 January 1973 for being AWOL from 3 January 1973 to 10 January 1973 

4.  A DA Form 19-32 (Military Police Report) dated 20 May 1973 shows he surrendered himself to military authorities.  It also shows that he went AWOL on 6 February 1973 and was dropped from the rolls (DFR) on 8 March 1973. 

5.  A DA Form 2496 (Disposition Form) dated 25 May 1973 shows that the Chief, Department of Clinics, found him to be physically and mentally fit for duty without profile limitations.  The examination failed to reveal any defect which would have contributed to his misconduct.

6.  A DA Form 458 (Charge Sheet), dated 25 May 1973 show he was charged with being AWOL from 6 February 1973 to 20 May 1973.

7.  On 30 May 1973, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an undesirable discharge, and of the rights available to him.  

8.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel).  He acknowledged that:

* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veteran Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State law
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

9.  On an unspecified date, his defense counsel recommended he receive a GD due to his age, his lack of civilian or military convictions (other than for AWOL), his problems at home, and the fact that he surrendered to military authorities.	

10.  A memorandum, subject:  Request for Discharge for the Good of the Service [Applicant], issued by the Commander, U.S. Army Personnel Confinement Facility (USAPCF), dated 30 May 1973, shows the Commander, USAPCF requested the applicant be issued an Undesirable Discharge Certificate.  He stated he had been personally interviewed and felt that rehabilitation would not be in best interest of the individual or the U.S. Army.

11.  On 8 June 1973, the separation authority approved the applicant's request and directed that he be reduced to the lowest enlisted grade and that he receive an undesirable discharge.  On 14 June 1973, he was discharged in accordance with the separation authority's decision with his service characterized as under conditions other than honorable.  He completed 6 months and 25 days of total active service with 103 days of lost time.

12.  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.

13.  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 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 an individual who was discharged for the good of the Service.

	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 Army does not have nor has it ever had a policy to upgrade discharges based on the passage of time.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was AWOL and eventually DFR.  Based on his lengthy period of AWOL, he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  His record shows he was well advised and fully aware of the consequences of his decision.

3.  Based on his lengthy period of AWOL, his service was unsatisfactory, and an under other than honorable conditions discharge was appropriate.

4.  In view of the foregoing, there is no 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)                                         AR20140014944





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ABCMR Record of Proceedings (cont)                                         AR20140014944



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