IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140007847 


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 that in June 1971 a train wreck in Davis, CA was the cause of him getting back to Fort Ord, CA, about 4 hours late.  It was an Act of God that he had no control of and he cannot be held responsible for.

   a.  He states the Army was the cause of him contracting Chronic Obstructive Pulmonary Disease (COPD) and Emphysema because he was required to pick up and field strip cigarette butts thrown on the ground by other Soldiers during field marches.

   b.  He went absent without leave (AWOL) after receiving orders for overseas movement to the Republic of Vietnam because if he complied with the orders, it would have violated his religious belief that does not allow him to kill other human beings.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 into the U.S. Army on 10 March 1971.  He was assigned to Fort Ord, CA, for basic combat training (BCT) on 22 March 1971.

3.  The applicant was tried by a special court-martial.

   a.  He was found guilty of being AWOL from 31 March 1971 to 14 July 1971.

	b.  He was sentenced to restriction to the company area for 60 days.

   c.  On 18 August 1971, the Special Court-Martial Convening Authority approved the sentence and ordered it executed.

4.  The applicant's military personnel record shows he was –

* reported AWOL effective 22 September 1971
* dropped from the rolls of his unit on 4 October 1971
* returned to military control on 24 November 1971

5.  A review of the applicant's military personnel record failed to reveal a DD Form 458 (Charge Sheet) or a complete copy of the applicant's request for 
discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service in lieu of trial by court-martial). 

6.  On 7 December 1971, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the Uniform Code of Military Justice and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was advised of the implications that are attached to such a discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might –

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration (VA)
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged that he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.

	d.  He was also advised that he could submit any statements he desired in his own behalf however; he elected not to submit statements in his own behalf.

   e.  The applicant and his counsel placed their signatures on the document.

7.  On 13 December 1971, the separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed he receive an Undesirable Discharge Certificate.
 
8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 16 December 1971 under the provisions of Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service.  He completed 3 months and 22 days of net active service during this period.

9.  A review of the applicant's military personnel record failed to reveal any evidence that he submitted an application for conscientious objector status.
This review also failed to reveal evidence of any unfitting medical conditions during the period of service under review.

10.  A further review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

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

	a.  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.

	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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because an Act of God prevented him from returning to duty on time in June 1971, he subsequently went AWOL because complying with orders for overseas movement would have violated his religious beliefs, and he contracted COPD and Emphysema as a result of his military service.

2.  Records shows the applicant was tried by a special court-martial and found guilty of being AWOL from 31 March 1971 to 14 July 1971.  It is not clear how a train accident that occurred in June 1971 had any adverse impact on him being present for duty at his unit from 31 March 1971 through 31 May 1971, or how it prevented him from returning to his unit until 15 July 1971.

   a.  There is no evidence of record that shows the applicant applied for conscientious objector status to assert his religious convictions.  In any event, this would not serve as an excuse for his periods of AWOL.
 
   b.  There is also no evidence of record that shows he was diagnosed with any unfitting medical conditions during the period of service under review.
   
   c.  Thus, the evidence of record does not support any of the contentions the applicant presents to this Board.

3.  The evidence of record shows the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the type and character of discharge directed is presumed to have been, and still is, appropriate.

5.  During the period of service under review the applicant was convicted by special court-martial and he had a total of 168 days of lost time.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

6.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.


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)                                         AR20140007847



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ABCMR Record of Proceedings (cont)                                         AR20140007847



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