IN THE CASE OF:	  

		BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140017521


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 discharge be upgraded to honorable.

2.  The applicant states the decision to put him out of the Army prior to the end of his enlistment, and denigrate him with an undesirable discharge, was and is unjust.

	a.  Prior to being absent without leave (AWOL), he successfully completed basic training and advanced individual training as an Aircraft Maintenance Apprentice.  He had served overseas in Germany and was growing in confidence and competence at the time of his discharge.  There was nothing significant about his service that could be described as "undesirable."  Apart from his AWOL period, the character of his service was honorable. 

	b.  The Army did not take into account the circumstances that led to his period of AWOL service.  He was on authorized leave; he was planning to go home and marry the love of his life.  He planned to propose to her, marry her, have a honeymoon and then report back to his command and continue with his enlistment.  When he got home all was going as planned, until one day she told him she did not want to get married because she was in love with another man.  He was 18 years old at the time; the news was beyond devastating to him and nothing in his life had prepared him to deal with the overwhelming negative feelings of rejection, rage, and total discouragement.  He seriously contemplated suicide at the time.  His pain was so great; he did not care about anything for a time.  His impulse was to get away and that is what he did.  He drove away and stayed away for over a month from the day of that tragic news.  If he were to have the same devastating news today at his current age 61, he is sure he could make it back to his job without running for over a month.  He knows this because in his life thus far, he has endured illness, family deaths, relational break-ups and family discord.  He has never since quit or melted down to the point of leaving his job or his life responsibilities since that time. 

	c.  He returned to Fort Ord on his own accord. After a very difficult month of his life, he came to his senses and realized he had a commitment and a responsibility to get his life back in order.  He expected the Army would discipline him; however, he did not expect that discipline would include an undesirable discharge.  

	d.  After his return to Fort Ord, he was detained with many other Soldiers who were there after returning from AWOL.  He remembers most were being processed for immediate separation and he presumes all received a less than honorable discharge.  It occurred to him later that it was much easier for those deciding what to do with all of them to discharge them, rather than process them for disciplinary action and return them to their chains of command.  It was a convenient way to process them.  He has served a life sentence since then, having the stigma of an undesirable discharge.  The Army could have chosen to discipline him, and could have allowed him to continue with his enlistment after he served his punishment.  Had that happened, both he and the Army would have benefited.

	e.  Since his separation from the Army, he has managed to go on with his life despite this shameful discharge in his background.  He was able to work, support his family, raise his children and get by without his discharge having a major impact on my life.  Today, things have changed; he is disabled and can no longer work as a mechanic, as he has for most of his life.  Having the undesirable discharge at this time of his life means he will go into his declining senior years without veteran's benefits like health care and affordable home loans.  Now, more than any other time of his life, he is paying a heavy penalty for not being at work at time in his youth when he should have been.  The penalty for this indiscretion on his part is getting more severe over time.  This discharge was not necessary in his case; he maintains it is therefore unjust.  He is asking the Board to please correct this now.

	f.  The character of his entire life, both before and after his AWOL period, has been honorable.  Whether the Board grants an upgrade or not, he knows he will continue to live his life in an honorable way.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 258A (Undesirable Discharge Certificate).

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 7 May 1971.  He completed his initial entry training and was awarded military occupational specialty 67A (Aircraft Maintenance Apprentice).  The highest rank/grade he attained during his period of military service was private first class/E-3.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 2 June 1971 during his advanced individual training, for disobeying the lawful order of a commissioned officer on 29 May 1971.

4.  He was assigned to Headquarter and Headquarters Company, 1st Armored Division in the Federal Republic of Germany, after completing his initial entry training.

5.  He received NJP under the provisions of Article 15 of the UCMJ, on 24 March 1972, for disobeying the lawful order of a commissioned officer on 22 March 1972.

6.  He was reported by his unit as AWOL on or about 23 May 1972 and he was declared a deserter and dropped from the rolls of the Army on 21 June 1972.  He was returned to military control on or about 24 September 1972.

7.  His record contains a DD Form 458 (Charge Sheet) that confirms his command preferred court-martial charges against him for being AWOL from on or about 23 May 1972 through on or about 24 September 1972.
8.  The applicant's discharge packet is not available for review; however, his record contains a properly-constituted DD Form 214.  This form shows he was discharged on 21 December 1972, in the rank/grade of private/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He was discharged in lieu of trial by court-martial and he was received an under other than honorable conditions discharge.  He completed 1 year, 3 months, and 9 days of net active service during his period of enlistment, and he had 126 days of lost time.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

   a. Paragraph 3-7a of the regulation in effect at the time provided that 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.

   b. Paragraph 3-7b of the regulation in effect at the time provided that 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.  

   c. Chapter 10 of the regulation in effect at the time provided that a member who had 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 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, a discharge under other than honorable conditions was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade was carefully considered; however, there is insufficient evidence to support his request.

2.  His record is void of a discharge packet containing the necessary paperwork used to affect his discharge; however, it does contain:

	a.  A properly-constituted DD Form 458 that shows his command preferred court-martial charges against him for being AWOL from on or about 23 May 1972 through on or about 24 September 1972.

	b.  A properly-constituted DD Form 214 that shows he was discharged on    21 December 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. 

3.  In accordance with Army Regulation 635-200, chapter 10, the applicant would not have been discharged under this provision unless he had requested discharge – voluntarily, willingly, and in writing –in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations and all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provides no information that would indicate the contrary. Further, it is presumed his discharge accurately reflects his overall record of service.  
 
4.  He contends there was nothing significant about his service that could be described as "undesirable"; however, the evidence shows he deserted the Army, which is a serious offense punishable under the UCMJ.  

5.  He further contends the Army could have chosen to discipline him, and could have allowed him to continue with his enlistment after he served his punishment. Had he been convicted by court-martial, he may have been allowed to remain in service following his punishment, depending on the sentence imposed.  However, this is a moot point, since his discharge resulted from the Army's acceptance of his communicated request for discharge in lieu of trial by court-martial (emphasis added).  

6.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His act warranted the issuance of an under other than honorable conditions discharge and an Undesirable Discharge Certificate.  

7.  In view of the foregoing, there is not a sufficient basis to upgrade 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20140017521



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