IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140021319 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he went absent without leave (AWOL) because his wife wandered from her responsibilities to take care of their children and he went home to take care of them.  He obtained custody from the court and found that it was too difficult for him to continue in the service and take care of his children.  He goes on to state that he applied to the Army Discharge Review Board and was granted an upgrade of his undesirable discharge to a general discharge and he now requests that it be further upgraded to a fully honorable discharge.

3.  The applicant provides a one-page letter explaining his application, a copy of his DD Form 214 (Report of Separation from Active Duty), two character references, a police record, and 26 certificates for various accomplishments.

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 13 February 1969 with a moral waiver for armed robbery.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training as an ammunition storage specialist at Fort Knox, Kentucky and remained assigned at Fort Knox for his first assignment.

3.  On 8 August 1969, he was convicted by a special court-martial of being AWOL from 5 June to 3 July 1969.  He was sentenced to perform hard labor for 45 days and to forfeit $30.00 for 2 months.

4.  On 5 June 1970, nonjudicial punishment (NJP) was imposed against him for being AWOL from 1 June to 2 June 1970.

5.  On 10 September 1970, NJP was imposed against him for being AWOL from 1 to 3 September 1970 and for failure to go to his place of duty.

6.  On 2 October 1970, the applicant’s commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-212 for unsuitability.  He cited as the basis for his recommendation that the applicant had a lack of appropriate interest and other defective attitudes as shown by his 292 days of lost time and his chronic shirking of his duties.

7.  On 16 October 1970, he again went AWOL and remained absent in desertion until he was returned to military control at Fort Dix, New Jersey on 26 January 1971.  He again departed AWOL on 18 February 1971 and remained absent until he was again returned to military control on 16 June 1971.  

8.  Charges were preferred against him on 17 June 1971 and 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.  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 acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He elected to not to submit a statement in his own behalf.


9.  The appropriate authority (a major general) approved the applicant's request for discharge on 15 July 1971 and directed the issuance of an Undesirable Discharge Certificate.

10.  Accordingly, on 27 July 1971 he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an undesirable discharge.  He completed 11 months and 4 days of total active service with 556 days of time lost due to AWOL.

11.  The applicant applied to the ADRB for an upgrade of his discharge and was granted a personal appearance with counsel before that board in the Pentagon on 2 August 1974.  After reviewing the testimony and evidence in the case the ADRB voted to upgrade his discharge to a general discharge (under honorable conditions).   The rationale for that board’s decision is not contained in the available records. 

12.  A review of his official records shows that the applicant was in an AWOL status when he was admitted to the Naval Hospital in St. Albans, New York and was treated for heroin withdrawal and various physical injuries.  The applicant admitted that he had been using heroin for the past 5 years at a rate of $25.00 to $30.00 per day.  The applicant was apprehended by the Armed Forces Police Department and was returned to military control.  A line of duty investigation was conducted and found the applicant’s injuries to be not in the line of duty due to own misconduct.

13.  The applicant provides numerous certificates of appreciation and certificates for training, diploma, and service awards.  He also, provides two letters attesting that he is a good citizen and family-oriented person.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge 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 before a trial by court-martial, he voluntarily requested a 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 and numerous supporting documents have been carefully considered and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated absences and misconduct during such a short period of service.  Notwithstanding the decision of the ADRB, his service simply did not rise to the level of a fully honorable discharge.

4.  Accordingly, there appears to be no basis to grant 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)                                         AR20140021319





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ABCMR Record of Proceedings (cont)                                         AR20140021319



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