BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140016782 


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 honorable.  

2.  The applicant states he turned his entire life around for the better since his discharge from the Army.

3.  The applicant provides no additional evidence.

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 on 28 September 1973.


3.  He accepted nonjudicial punishment (NJP) on 15 November 1973 for being absent from his place of duty without authority during the period 11-13 November 1973.

4.  An Absent Without Leave (AWOL) Returnee Information Sheet shows he departed AWOL on 7 January 1974 and he remained AWOL until he was apprehended by civilian authorities on 3 April 1974.  

5.  On 5 April 1974, court-martial charges were preferred against him for the AWOL offense.

6.  On 17 April 1974, he consulted with legal counsel and voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  

7.  In doing so, he acknowledged that the charges preferred against him under the Uniform Code of Military Justice (UCMJ) authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he could be discharged under other than honorable conditions 
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

8.  He submitted a statement in his own behalf in which he stated his reason for the AWOL offense was that he did not like the Army's way of life and because he needed to be home with his mother and his son.  He indicated if he stayed in the Army he would go AWOL again and that he could not adjust to the Army.

9.  On 19 April 1974, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 26 April 1974, he was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he accrued 93 days of lost time and that his service was characterized as under other than honorable conditions.

10.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge during the 15-year statutory period.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
	a.  Chapter 10, 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, the 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 to 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 states 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 undesirable discharge to honorable was carefully considered.  

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  His 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 laws and regulations. There is no indication the request was made under coercion or duress.

4.  During his brief period of service, his record of indiscipline includes NJP for being absent from his place of duty without authority, court-martial charges for AWOL, and 93 days of lost time.  Based on this record of indiscipline and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  The applicant failed to show that his discharge process and/or the character of service he received were in error or unjust.  As a result, there is no basis to grant the applicant's 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)                                         AR20140016782



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ABCMR Record of Proceedings (cont)                                         AR20140016782



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