IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140010159 


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, in effect, an upgrade of his undesirable discharge to general under honorable conditions.

2.  The applicant states:

	a.  He was told at the time of his discharge that he was considered "undesirable," but his Department of Veterans Affairs (VA) benefits would not be affected in the future.

	b.  He was told his discharge would be characterized as general under honorable conditions.

	c.  He was 17 years old with a 10th grade education when he volunteered to join the Army in order to better his life and serve his country.

	d.  While he was serving at Fort Hood, TX, his company commander treated him with disrespect and threatening behavior.  The day before his accident, he and his commander got into an argument and his commander threatened to get rid of him.

	e.  The day of his accident, his commander ordered him to hook up a tow bar between two tracked vehicles.  As he was attempting to follow instructions, his commander ordered one of the drivers to back up before he was able to move completely out of the way, causing an injury to his hand.

	f.  After the accident, he was in fear for his well-being.  When he asked about getting help for his injury, he was told to "go screw yourself."

	g.  He was young and he didn't know what to do so he returned to his home.  He then returned to service of his own will.  He does not believe he was gone 212 days.

	h.  When he was discharged, he was told it was an undesirable discharge and would not affect his future VA benefits.

3.  The applicant provides no additional 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 was born on 31 May 1955.  He enlisted in the Regular Army on 26 June 1972 at 17 years of age.  Upon completion of initial entry training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  Headquarters, 2d Armored Division, Fort Hood, TX, Special Orders Number 107, dated 17 April 1973, show he was reduced from the rank of private (PVT)/E-2 to PVT/E-1 as a result of nonjudicial punishment due to misconduct under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).

4.  On 8 June 1973, he was found guilty by a special court-martial of being absent without leave (AWOL) from 23 October to 3 December 1972.

5.  On 14 November 1973, he was found guilty by a special court-martial of being AWOL from 10 July to 15 October 1973.  Part of the sentence consisted of confinement for 2 months.

6.  His records are void of a separation packet containing the specific facts and circumstances surrounding his discharge process.  His record contains a DD Form 214 (Report of Separation from Active Duty) which identifies the authority and reason for his separation.

7.  His DD Form 214 shows he was discharged on 7 January 1974 in the rank/grade of PVT/E-1 after completing 11 months and 10 days of creditable active service with 212 days of lost time.  It also shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with his service characterized as under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.

8.  There is no evidence in the applicant's available records indicating that harassment by his command was the proximate cause of his AWOL offense.

9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  Chapter 10, 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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 to an individual who was discharged for the good of the service.

	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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge was carefully considered.

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) 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 is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  In the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  He contends that he was young and he did not know what to do; however, he successfully completed initial entry training.  This shows he was mature enough to satisfactorily serve.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

4.  The applicant failed to show that his discharge and/or the character of service he received were in error or unjust.  As a result, there is no basis for granting him 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)                                         AR20140010159



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ABCMR Record of Proceedings (cont)                                         AR20140010159



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