IN THE CASE OF:	   

		BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140017136 


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, that his undesirable discharge be upgraded. 

2.  The applicant states, in effect, that all draft dodgers were pardoned and after 41 years he should be also.  He had eye problems that are documented in his records.  He has been an outstanding citizen in his community for 41 years and believes he needs to clean matters up.  Additionally, his son served 24 years in the Air Force and retired in 2014.

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 was inducted on 25 September 1969.  He was transferred to Fort Knox, Kentucky to undergo basic training.  On 6 November 1969, nonjudicial punishment was imposed against him for sleeping on guard duty.

3.  He completed basic training and was transferred to Fort Polk, Louisiana to complete advanced individual training (AIT) as a clerk typist.  He completed this training and received orders transferring him to the Overseas Replacement Detachment, Oakland Army Base, California, for transfer to Vietnam.  His report date to Oakland was 9 May 1970. 

4.  The applicant did not report for movement as ordered and was reported as being absent without leave (AWOL).  He remained absent in a desertion status until he was returned to military control on 13 July 1970.  He was transferred to Fort Ord, California where he was convicted by a summary court-martial of being AWOL from 9 May to 13 July 1970.  He was sentenced to a forfeiture of $62.00 pay and confinement at hard labor for 30 days.  The convening authority approved the sentence and suspended that part of the sentence pertaining to hard labor for 30 days unless sooner vacated. 

5.  The applicant was again directed to report for transfer to Vietnam on
25 September 1970 and again he went AWOL until he was returned to military control at Fort Leonard Wood, Missouri on 4 January 1971.  Again, he went AWOL from 8 January to 23 August 1971 until he was returned to military control at Fort Riley, Kansas.

6.  On 1 September 1971, charges were preferred against the applicant for being AWOL from 8 January to 23 August 1971.

7.  On 23 September 1971, after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

8.  The appropriate authority approved his request for discharge on 6 October 1971 and directed the issuance of an Undesirable Discharge Certificate.


9.  Accordingly, on 18 October 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 11 months and 19 days of active service and he had 395 days of lost time due to being AWOL.

10.  The applicant's official records show on his separation medical physical examination he claimed he had a bad eye.  The examining physician noted that the applicant complained of problems with his right eye while in AIT. 

11.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

	a.  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.

	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 separation 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.
2.  After being afforded the opportunity to assert his innocence or mitigating circumstances 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 considered; however, his contentions are not sufficiently mitigating to warrant relief when compared to the extensive period of his absences and the lack of sufficient mitigating circumstances presented at the time, and his overall undistinguished record of service.  

4.  The applicant’s contention that he should be granted an upgrade of his discharge because all draft dodgers were pardoned also is found to lack merit. Only those who applied and successfully completed the prescribed alternate service were pardoned.  However, their discharges were not upgraded.

5.  The applicant provided no evidence to support his contentions and his service did not rise to the level of an honorable or a general discharge.  Accordingly, there appears to be no valid basis to approve his request for an upgrade of his 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)                                         AR20140017136



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ABCMR Record of Proceedings (cont)                                         AR20140017136



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