IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140018896 


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 an upgrade of his undesirable discharge.

2.  The applicant states:

* his mother and brother were killed in a car accident in 1969 while he was in the military 
* their deaths had a major effect on his life and he could not get over it
* he started drinking and making bad decisions

3.  The applicant provides three character-reference letters.

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 9 July 1969.

3.  On 27 February 1970, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the prescribed time to his appointed place of duty on 26 February 1970.

4.  Records show his duty status as follows:

* from on or about 30 March 1970 to 19 June 1970 – absent without leave (AWOL)
* from on or about 20 June 1970 to 25 June 1970 – confinement
* from on or about 13 July 1970 to 10 August 1970 – AWOL
* from on or about 11 August 1970 to 11 September 1970 – dropped from the rolls
* 12 September 1970 – surrendered to military control

5.  On 14 September 1970, charges were preferred against him for being AWOL from on or about 30 March 1970 until on or about 20 June 1970 and from on or about 13 July 1970 until on or about 11 September 1970.

6.  On 14 September 1970, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial after consulting with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge; the effects of requesting a discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and the rights available to him.

7.  In his request for discharge, he acknowledged:

* he understood he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Veterans Administration as a result of such a discharge
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions
* he elected not to submit statements in his own behalf

8.  On 18 September 1970, his immediate commander recommended trial by special court-martial and disapproval of his request for discharge under the provisions of Army Regulation 635-200, chapter 10.
9.  On 28 September 1970, his intermediate commander recommended approval of his request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.

10.  On 30 September 1971, the separation authority approved the applicant's request for discharge.  He directed the applicant's reduction to E-1 and the issuance of an undesirable discharge.

11.  On 26 October 1970, he was discharged accordingly.  His DD Form 214 shows he completed 10 months and 8 days of creditable active service.

12.  He provided three character-reference letters in support of his request.

	a.  P____ B. C____ states he has known the applicant for many years.  He is a very hard-working and dependable person.  The applicant is a very dedicated family man who has turned his life over to God.

	b.  T____ T. C____ states he has known the applicant for over 20 years and describes him as being a hard worker all his life until he became ill with cancer.  The applicant is a great family man, husband, and true gentleman.

	c.  D____ H____ L____ and B____ L____ state they have known the applicant since eighth grade.  The applicant is now a cancer patient.  He has always been a hard worker who has taken care of his family and he is well-respected in his community.

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

14.  His records are void of and he failed to provide any evidence of the deaths of his family members or that he sought assistance from his command.

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

	a.  Paragraph 3-7a states 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 states 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.

	c.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The character-reference letters he provided were noted; however, good post-service conduct is normally not sufficient in and of itself to merit a discharge upgrade.

2.  The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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.  After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.

3.  He did not submit statements in his own behalf when he requested discharge in lieu of trial by court-martial wherein he could have given a reason as an excuse or justification for his misconduct.  Further, his records are void of and he failed to provide evidence showing he sought assistance from his command with coping with the deaths of his family members.

4.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service for this period.

5.  His misconduct clearly diminished the overall quality of his service below that meriting an honorable or a general discharge.  In view of the foregoing evidence of record, there is no basis for granting the applicant's request.



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 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)                                         AR20140018896



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ABCMR Record of Proceedings (cont)                                         AR20140018896



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