IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20140021602 


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 discharge.

2.  The applicant states, in effect, he was experiencing a mental condition and he had personal problems the Army failed to detect or consider. 

3.  The applicant provides no additional documents in support of his application.

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 21 December 1973.



3.  His disciplinary history includes:

	a.  Acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being:

		(1)  absent without leave (AWOL) from 12 to 16 April 1974; and

		(2)  AWOL from 1 to 4 July 1974. 

	b.  Special Court Martial Order Number 24, dated 21 October 1974, which shows he pled guilty and was found guilty of absenting himself from his unit without authority from 3 to 18 September 1974.  He was sentenced to a forfeiture of $20.00 pay for 4 months and confinement for 45 days. 

	c.  A DD Form 458 (Charge Sheet), dated 15 January 1975, that shows court-martial charges were preferred against him for one specification of being AWOL from 21 October 1974 to 3 January 1975. 

4.  On 6 February 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written 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 for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Although the applicant's separation packet indicates he would submit a statement on his own behalf, there is no statement attached to his discharge packet. 

5.  The applicant's unit commander and intermediate commanders subsequently recommended approval with the issuance of an undesirable discharge certificate.

6.  On 14 February 1975, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200.  He also directed the applicant’s reduction to the lowest enlisted grade and that be issued an undesirable discharge certificate.
7.  On 28 February 1975, the applicant was discharged accordingly.  He completed 10 months and 4 days of creditable active service with 127 days of time lost.

8.  On 7 October 1975, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.

	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 evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress and there is no evidence indicating he had a mental condition or personal problems that caused his misconduct.

2.  His service records show he was AWOL 127 days, he had two NJPs, one court-martial conviction, and additional court-martial charges were pending against him.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In view of the foregoing evidence, there is an insufficient basis for upgrading 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)                                         AR20140021602



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140021602



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1