IN THE CASE OF:	  

		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140006490 


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 he was being harassed and sexually molested at the time.  He tried to get transferred to another unit but he was denied; so, he decided to go absent without leave (AWOL).  He went into the Army in good faith to serve his country and instead, the Army issued him an undesirable discharge. 

3.  The applicant does not provide any evidence.

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 June 1972.  He was assigned to Fort Dix, NJ, for completion of training.
3.  On 11 August 1972, he departed his training unit in an AWOL status.  However, he returned to military control on 14 August 1972.  On 15 August 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 11 to 
14 August 1972. 

4.  On 19 August 1972, he again departed his training unit in an AWOL status.  However, he returned to military control on 26 August 1972.  On 28 August 1972, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 19 to 28 August 1972. 

5.  On 27 October 1972, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 14 to 20 October 1972 and from 20 to 26 October 1972. 

6.  On 10 November 1972, he departed his training unit in an AWOL status but he returned to military control on 16 November 1972.  He was placed in the Personnel Confinement Facility (PCF) pending disposition of his case. 

7.  On 21 November 1972, he departed the PCF in an AWOL status and on the same date he was dropped from the rolls as a deserter. 

8.  On 10 January 1973, he was apprehended by civil authorities for eight counts of forgery.  After processing and confinement at the Allegheny County Prison, he was released to military authorities on 10 January 1973 at Fort Meade, MD. 

9.  On 15 January 1973, his command preferred court-martial charges against him for two specifications of being AWOL from 21 to 16 November 1972 and from 21 November 1972 to 10 January 1973. 

10.  On 17 January 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the 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.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected not to submit a statement in his own behalf - nothing was mentioned about a transfer or sexual harassment or molestation

11.  On 1 February 1973, his immediate and intermediate commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

12.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.

13.  On 13 February 1973, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 5 months and 13 days of total active service with 70 days of lost time.

14.  On 22 June 1981, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his request for an upgrade of his discharge. 

15.  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, an under other than honorable conditions discharge 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 applicant's request that his under other than honorable conditions discharge be upgraded was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of an offense 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.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  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.

3.  With respect to his arguments:

	a.  Nothing in the applicant's records show he was harassed or molested or requested  a transfer to another unit.  The evidence of record shows he was still in training when he went AWOL on at least five occasions.  But even if he had requested a transfer and was denied this did not justify him going AWOL on multiple occasions, including after he was transferred from the unit (i.e., from the PCF). 
	b.  Nothing in the applicant's record shows he was forced to choose the discharge.  He went AWOL by choice.  When presented with his options, he willingly chose the discharge.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either an honorable or 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)                                         AR20140006490





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ABCMR Record of Proceedings (cont)                                         AR20140006490



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