IN THE CASE OF:	  

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140017347 


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 fully honorable discharge.

2.  The applicant states that he did nothing to justify the discharge he received and he was coerced into signing papers that he did not understand.  He also went to prison for something he did not do or could not have done.  He states that he was a black man in the wrong place at the wrong time and once released from prison he was faced with the very same scenario by the military – sign it or go to prison!  He continues by stating that he was afraid so he signed it and was entered into the military under the same circumstances.  Accordingly, he deserves an honorable discharge and all that goes with it.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and documents from his official records.

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 24 November 1971 for a period of 3 years and training as a power generator equipment operator/mechanic.  He was transferred to Fort Knox, Kentucky to undergo his basic training.  On 8 January 1972, nonjudicial punishment was imposed against him for failure to go to his place of duty.  He completed his basic training and was transferred to Fort Belvoir, Virginia to undergo his advanced individual training.

3.  On 18 March 1972, he went AWOL and remained absent in desertion until     2 May 1972.  He again went AWOL from 3 July to 26 September 1972, from 
13 October to 21 December 1972, from 6 February to 20 April 1973, 22 March 1974 until 19 December 1975 and on 20 December 1975, he was confined by civil authorities until 16 November 1976.  He again went AWOL from 17 November to 12 December 1976.  Charges were preferred against him at Fort Knox, Kentucky on 10 January 1977.

4.  On 11 January 1977, after consulting with defense counsel, the applicant submitted a request for discharge 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.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  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 also elected to submit a statement in his own behalf whereas he stated that he was pressured into joining the Army by officials at the reform school where he was incarcerated and was told that he had to stay out of trouble for 6 months.  He went on to state that the recruiter falsified records to get him in and after 6 months he went AWOL because he could not adjust to military life and after his 6 months probation was over he simply wanted out of the Army.

5.  On 18 January 1977, the appropriate authority (a major general) approved his request for discharge and directed the applicant be issued an Undesirable Discharge Certificate. 

6.  On 31 January 1977, 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 11 months and 10 days of active service and had 1,278 days of lost time due to AWOL and confinement by civil authorities.

7.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 7 March 1984 contending that he was tricked into joining the Army by officials at the youth center, that he was illegally enlisted, that he was led to believe that all he had to do was complete basic training and he would be assigned to a Reserve unit to finish his time, that he was misled and coerced into requesting a discharge, and that he was told that his discharge would be upgraded in 5 to 15 years.  After reviewing the facts and circumstances of his case, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request on 20 September 1984.

8.  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 admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she 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.

	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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a 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 and he was properly reduced to the pay grade of E-1.

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, confinement and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the extensive length of his absences, his short period of service and his otherwise undistinguished record of service. 

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140017347





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ABCMR Record of Proceedings (cont)                                         AR20140017347



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