IN THE CASE OF:	   

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140015507 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he was only 17 years of age and gay when he enlisted and was singled out for abuse by noncommissioned officers (NCO’s) in basic and advanced individual training.  He goes on to state that he had an IQ (intelligence quotient) of 74 and could not deal with the sexual harassment which led to many periods of going absent without leave (AWOL) and substance abuse.  Accordingly, he believes his discharge should be upgraded based on the “Don’t Ask, Don’t Tell” policy that was later in effect.   

3.  The applicant provides no additional documents with his application.

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 with parental consent on 
5 January 1970 for a period of 3 years and training as a radio relay and carrier attendant.  He completed basic training at Fort Ord, California and was transferred to Fort Gordon, Georgia on 23 March 1970 to undergo advanced individual training. 

3.  The applicant went AWOL from 5 June to 26 July 1970 and from 31 July to 
26 August 1970; he was returned to military control at Fort Ord.   

4.  On 29 September 1970, the applicant was convicted by a special court-martial of the above two periods of AWOL.  He was sentenced to restriction for 
30 days, hard labor without confinement for 30 days, a forfeiture of $50.00 pay for 3 months, and reduction to the pay grade of E-1.  

5.  The applicant went AWOL again from 5 October 1970 to 9 March 1971 until he was returned to military control and charges were preferred against him on 
11 March 1971.

6.  On 18 April 1971, after consulting with counsel and being advised of his rights and options in regard to the assault charges against him, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice (UCMJ), that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  The appropriate authority (a major general) approved the applicant’s request for discharge on 8 May 1971 and directed that he be furnished an Undesirable Discharge Certificate.

8.  On 14 May 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 7 months and 9 days of active service and had 271 days of lost time due to being AWOL and in confinement.


9.  A review of his official records failed to show any indication that the applicant claimed or was found to be a homosexual.

10.  On 4 April 1973, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 13 March 1974, the ADRB denied his request.

11.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time, an undesirable discharge was normally issued.

   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 applicant’s voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  

3.  The applicant's contentions have been noted; however, not only are they not supported by the evidence of record, they are not sufficiently mitigating to warrant relief under the circumstances given the serious nature of his misconduct and his otherwise undistinguished record of service. 
4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a general 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)                                         AR20140015507



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ABCMR Record of Proceedings (cont)                                         AR20140015507



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