IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140009531 


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 under conditions other than honorable to general under honorable conditions.

2.  The applicant states:

* he was confined at Fort Belvoir in maximum security for something for which he was never court-martialed
* the early 1970's were tough times for him and he was already an alcoholic when he joined the Army
* he is now a recovering alcoholic and his life has been literally hell because of his discharge
* his major depression is due to his confinement

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Standard Form 180 (Request Pertaining to Military Records)
* letter from the Army Board for Correction of Military Records (ABCMR), dated 12 February 2014



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 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 29 October 1971.

3.  He was assigned to Company B, 1st Battalion, U.S. Army Engineer School Brigade, Fort Belvoir, VA, for advanced individual training effective 15 January 1972.

4.  His records show he was absent without leave (AWOL) as follows:

* from 26 January 1972 until on or about 14 February 1972
* from 15 February 1972 until on or about 17 February 1972
* from 18 February 1972 until on or about 22 February 1972

5.  A DD Form 1569 (Incident/Complaint Report), dated 25 February 1972, shows the applicant was apprehended by civil and Armed Forces police on 22 February 1972.  During apprehension, the applicant became disorderly and attempted to strike civil and Armed Forces police with a pool cue.  Necessary force was used and he was handcuffed.  A telephonic status check was made with his commanding officer who verified his status as AWOL.  He was placed in confinement from 22 February 1972 until 10 March 1972.

6.  On 11 March 1972, he was again AWOL.

7.  A complaint filed with the Commonwealth of Virginia, County of Fairfax, dated 12 March 1972, shows the applicant took and drove away in another individual's automobile on that date without the consent and with intent to temporarily deprive the other individual of its use.

8.  On 13 March 1972, the applicant was apprehended by civil authorities and held in confinement until 21 April 1972.

9.  On 21 April 1972, the applicant was released from civil confinement and arrested and confined by Armed Forces police.

10.  On 28 April 1972, the following charges were preferred against the applicant:

* for being AWOL on or about 26 January 1972 until on or about 14 February 1972
* for being AWOL on or about 15 February 1972 until on or about 17 February 1972
* for being AWOL on or about 11 March 1972 until on or about 21 April 1972
* for escaping confinement from the post stockade
* for assaulting and threatening an officer in the execution of his Armed Forces police duties

11.  On 28 April 1972, his commanding officer recommended his elimination from military service and trial by a special court-martial.  The applicant was eligible for transfer to the Correctional Training Facility at Fort Riley, KS; however, his commander did not recommend his transfer.

12.  His records show he submitted an inquiry to the Commander in Chief of the Armed Forces in May 1972 about his attempts to be discharged and his status as a prisoner in the Fort Belvoir stockade.  On 26 May 1972, the Acting Adjutant General of the Army provided a written response and advised the applicant to discuss his issues with his counsel and to contact the local Inspector General or submit a complaint to the Inspector General, U.S. Army, Washington, DC, if he believed he was receiving unfair treatment or that conditions in the stockade were not as required by Army regulations.

13.  On or about 18 May 1972, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.

14.  On or about 18 May 1972, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he elected not to submit statements in his own behalf and indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions
* he acknowledged he understood that he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration if the discharge request were approved

15.  His immediate and intermediate commanders recommended approval of his request with the issuance of an undesirable discharge.

16.  On 18 May 1972, the separation authority approved the applicant's request for voluntary discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200, chapter 10, and directed his reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.

17.  On 7 June 1972, the applicant was discharged accordingly.  His DD Form 214 shows he completed 4 months and 16 days of creditable active service.  He had 83 days of lost time during the periods 26 January to 21 February 1972, 22 February to 10 March 1972, 11 to 12 March 1972, and 13 March to 20 April 1972.

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

19.  His records are void of and he failed to provide any evidence showing he was diagnosed with major depression at any time during his active duty service.

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

	a.  Paragraph 1-7, in effect at the time, stated the type of discharge and character of service would be determined solely by the military record during the current enlistment or period of service, plus any extensions thereof from which the Soldier was being separated.

	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 applicant's request for an upgrade of his discharge under other than honorable conditions to general under honorable conditions was carefully considered.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  His records show he was charged with multiple incidents of being AWOL, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

3.  He chose to be AWOL and when court-martial charges were preferred against him, he voluntarily chose to be discharged instead of facing those charges.  His records show he was well advised and fully aware of the consequences of his decisions.

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 and there is no documentary evidence of mitigating circumstances that would warrant upgrading his discharge.  Therefore, he is not entitled to a general discharge under honorable conditions.



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)                                         AR20140009531



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ABCMR Record of Proceedings (cont)                                         AR20140009531



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