IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017039


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 undesirable discharge (UD) to a general discharge (GD).

2.  The applicant states, in effect:

   a.  He enlisted when he was 16 years old and was inducted when he turned 
17 years old.  He came from a good family, but his father died when he was 
9 years old and left his mother with 8 children to care for and support.  He was the eldest son and felt the need to take care of his family.

   b.  In December 1974, his mother was in a horrific crash, but he was denied emergency leave.  He went absent without leave (AWOL) in order to spend time with her since he believed she would die.  When he arrived at home his mother was upset with him for going AWOL and called the Federal Bureau of Investigations to have him picked up and returned to his unit.

   c.  He feels very guilty for being AWOL, since he is very patriotic to his country and to the troops.  

   d.  He was young and stupid and now he is requesting an upgrade of his discharge in the interest of fairness and forgiveness.

3.  The applicant provides a copy of his DD Form 214 and a self-authored letter.


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 12 September 1974, the applicant enlisted in the Regular Army.  He went AWOL from 2 December 1974 to 9 March 1975 and from 17 March to 29 June 1975 while in a trainee status.

3.  On 11 July 1975, he was charged with being AWOL and was pending a court-martial for being AWOL for a total of 203 days.

4.  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 furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf

5.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an UD 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

6.  He submitted a statement in his own behalf and indicated that he was very young, age 17, when he joined the Army and he thought he could make it in the Army.  He also believed it would help him financially, but it did not.  He went AWOL because he realized he could not adapt to the Army's way of life and if he was not allowed to leave the Army he would continue to go AWOL.

7.  On 25 July 1975, his request was approved by the convening authority.  

8.  On 11 August 1975, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in-lieu of trial by court-martial with an UD.  His 
DD Form 214 (Report of Separation from Active Duty) shows in:

* Item 18c (Record of Service - Total Active Service) 4 months and 9 days
* item 27 (Remarks) 203 days of lost time for the period 2 December 1974 to 9 March 1975 and from 17 March to 29 June 1975 

9.  A review of the available records fails to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 
15-year statutory limit.

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

	a.  Chapter 10 provides 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 and that the Soldier was admitting guilt of the charge(s) against him, or of a lesser included offense that was also authorized the imposition of a bad conduct or dishonorable discharge.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged; the type of discharge normally given under the provisions of this chapter, the loss of both Federal and state veteran's benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to a Soldier 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 contentions have been noted.  However, his records show he had 203 days of lost time due to being AWOL and he served only 4 months and 9 days of active service.  

2.  His extended period of AWOL is an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  Although he enlisted in the U.S. Army at age 17 (there is no record that he was inducted), his youth and/or immaturity are not a sufficient justification for upgrading his discharge nor are his post-service accomplishments.  In addition, the applicant's claims that he was denied emergency leave when his mother was in a serious vehicle accident is unsubstantiated. 

4.  The applicant’s discharge accurately reflects his overall record of service.  

5.  In view of the foregoing, his request should be denied.

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)                                         AR20140015385



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ABCMR Record of Proceedings (cont)                                         AR20140017039



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