IN THE CASE OF:	  

		BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140018091 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states on 11 September 1974, the action of 17 May 1973 was withdrawn and all his rights, privileges, and property were restored.  

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* DA Form 20 (Enlisted Qualification Record)
* five pages of medical records, dated 28 June 2011 and 1 July 2014
* three special court-martial (SCM) orders, dated between 17 May 1973 and 11 September 1974
* DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 10 May 1974
* two Standard Forms (SF) 93 (Report of Medical History), dated 2 May 1972 and 29 January 1974
* two SF 88 (Report of Medical Examination), dated 2 May 1972 and 29 January 1974

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 10 May 1972 and he held military occupational specialty 11B (Light Weapons Infantryman).  On 20 July 1972, he was promoted to the rank/grade of private (PV2)/E-2.  On 7 September 1972, he was assigned to Company B, 1st Battalion, 325th Infantry Regiment, Fort Bragg, NC.  

3.  He was reported absent without leave (AWOL) from his assigned unit from:

* 8 to 12 February 1973
* 23 to 28 February 1973
* 1 to 27 March 1973
* 10 to 18 April 1973

4.  SCM Orders Number 9, dated 17 May 1973, issued by Headquarters (HQ), 1st Battalion, 325th Infantry, Fort Bragg, shows that on 10 May 1973, he pled guilty to and was convicted by a SCM of four specifications each of being AWOL on the above dates.  He was sentenced to confinement for 3 months, a forfeiture of $200 pay for 3 months, and reduction to private (PVT)/E-1.

5.  On 17 May 1973, the convening authority approved his sentence and that portion of the sentence that pertained to confinement for 3 months was suspended until 17 July 1973.  He was reported as being AWOL from his assigned unit from 15 to 20 June 1973.  

6.  Suspension of his sentence to confinement was subsequently vacated and he was placed in confinement at the U.S. Army Retraining Brigade, Fort Riley, KS, from 30 June to 11 September 1973.  

7.  On 23 September 1973, he was assigned to C Company, 1st Squadron, 8th Cavalry Regiment, Fort Hood, TX.  On 12 November 1973, he was reported as being AWOL from his assigned unit and on 27 November 1973 he was dropped from the rolls as a deserter.

8.  On 23 January 1974, he was returned to military control and assigned to the U.S. Army Personnel Control Facility, Fort Bragg, NC.  Court-martial charges were subsequently preferred against him for being AWOL from 12 November 1973 to 22 January 1974.

9.  On 28 January 1974, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested 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.

10.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. 

11.  With his request for a discharge, he submitted a statement in his own behalf, dated 28 January 1974, wherein he stated he felt the Army had been unfair to him and it changed his feelings toward the Army greatly.  He felt he would never Soldier again and [he wanted a discharge] for the good of the Army.

12.  On 1 and 6 February 1974, respectively, his immediate and senior commanders recommended approval of his request for a discharge with the issuance of an Undesirable Discharge Certificate.

13.  On 22 February 1974, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 6 March 1974, he was discharged accordingly.

14.  The DD Form 214 he was issued shows 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 (separation program designator (SPD) 246) with an under other than honorable conditions characterization of service.  He completed 1 year, 2 months, and 11 days of net active service with 225 days (7 months and 15 days) of lost time due to being AWOL or in confinement.

15.  The applicant provides and his record contains SCM Order Number 32, dated 11 September 1974, issued by HQ, 2nd Brigade, 82nd Airborne Division, Fort Bragg, wherein it SCM Order Number 9, dated 17 May 1973, was amended to show the applicant pled guilty and he was convicted by a SCM of four specifications of being AWOL from 8 to 12 February 1973, 23 to 28 February 1973, 1 to 27 March 1973, and 10 to 18 April 1973.  Only so much of the findings of guilty of the charges was approved (emphasis added); the sentence to confinement for 3 months, a forfeiture of $200 pay for 3 months, and reduction to PVT were disapproved; and all rights, privileges, and property of which he had been deprived of by virtue of the findings and the sentence were restored. 

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

17.  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 included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred.  An under other than honorable conditions discharge was normally considered appropriate.

18.  Army Regulation 635-200, 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.

19.  Army Regulation 635-200, 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 evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  Although SCM Orders Number 9 were amended in September 1974, the amendment reaffirmed that he pled guilty to and was found guilty of four specifications of being AWOL and merely dismissed the sentence of confinement, a forfeiture of pay, and reduction to PVT.  It had no impact on his subsequent request for a chapter 10 discharge in lieu of court-martial for being AWOL from 12 November 1973 to 22 January 1974.

4.  A review of his record shows he repeatedly went AWOL and he had almost 8 months of lost time due to being AWOL or in confinement at the time of his discharge.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20140018091



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ABCMR Record of Proceedings (cont)                                         AR20140018091



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