IN THE CASE OF:	  

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140015713 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he received a less than honorable discharge due to being absent without leave (AWOL).  He went AWOL because his pay records were lost and he was not receiving any pay.  He addressed the issue though his chain of command and he was told either there was nothing they could do or to wait another month and see if the problem was corrected.  After 
3 months he decided enough was enough and went home.  His wife was pregnant with their first child at the time and the only money they had was her separate rations.

3.  The applicant provides no additional evidence in support of 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.  On 24 November 1972, he enlisted in the Regular Army.  He completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 67V (OH-58 Helicopter Repairman).

3.  On 18 June 1973, he was assigned to Troop C, 2nd Squadron, 14th Cavalry at Fort Campbell, KY.

4.  On 3 October 1973, he went AWOL.  On 18 February 1974, he was apprehended by civil authorities in Turkey, TX.  On 27 February 1974, he was returned to military control at Dallas, TX.

5.  Court-martial charges were preferred against the applicant for being AWOL from on or about 3 October 1973 to 18 February 1974.

6.  He consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense for which he was charged
* making the request of his own free will
* advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  He submitted a statement from his defense counsel in his own behalf.  The defense counsel stated the information contained in the statement was taken from the available records and from a personal interview with the applicant.  Counsel stated:

* the applicant enlisted specifically for aircraft maintenance
* at AIT he was told he was excess in his requested MOS but he would receive the training because he had enlisted for it
* he did not have a steady job at Fort Campbell; he sat around all day or performed details for 4 months
* when he was allowed to work on a helicopter it was not in his MOS
* he had problems getting his separate rations allowance initiated
* he went AWOL on the day he was scheduled to pull weeds from a flower bed

9.  On 12 March 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

10.  On 18 March 1974, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations) due to conduct triable by court martial.  He had completed 11 months and 17 days of net active service that was characterized as under other than honorable conditions.  He had 138 days of time lost.

11.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally given to an individual who was discharged for the good of the service.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he went AWOL because he was not receiving any pay.  He had taken steps through his chain of command, but was told they could do nothing or to wait another month and see if it got corrected.  However, his defense counsel indicated it was only his separate rations allowance he was having problems getting initiated.  His military records do not show these problems or why they existed.

2.  It appears the applicant did not like the duties he was ordered to perform.  Duties assigned to an individual are based on the needs of the unit and the Army.  The fact that he didn't like his assigned duties is not a sufficient reason to go AWOL.

3.  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.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an under other than honorable conditions discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights. 

5.  The fact that he was apprehended by civil authorities after 138 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his undesirable discharge to either an honorable or 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)                                         AR20140015713



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ABCMR Record of Proceedings (cont)                                         AR20140015713



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