BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150000724 


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 under other than honorable conditions discharge.  

2.  The applicant states:

* he does not believe his request for a hardship discharge was given full consideration at all levels of the command 
* at the time he was dealing with emotional issues including the news of his deathly ill father when he was alerted to go overseas 
* he applied for a hardship discharge and everyone approved it except one officer; he tried to reason with his command but no one would listen
* he already had two brothers in Vietnam at the time and his mom and dad needed him 
* he tried to get them (the Army) to let him go and when they wouldn't, he went home 
* he was only 19 years of age at the time and all he knew was that his parents needed him home
* he is grown now but when a person is 19 and they are told a parent is dying, they do not make rational decisions
* he was finally discharged in 1971 and his father died in 1972; he was young and did not know what to do 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his father's death certificate, and a Criminal Record Search. 
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 Army of the United States at 20 years of age on 16 September 1970.  

3.  On 19 October 1970, at Fort Polk, LA he applied for a hardship discharge.  He indicated that both of his parents were unable to work and they were both dependent on him for support.  His brothers and sisters had families of their own and were unable to support their parents.  

* his company commander recommended approval 
* his battalion commander forwarded his request for consideration
* the unit Adjutant recommended approval
* the approval authority disapproved the request and indicated the applicant did not meet the criteria for a hardship discharge and explained the reasons for his decision

4.  On 16 February 1971, the applicant departed his training unit in an absent without leave (AWOL) status and on 16 March 1971 he was dropped from the rolls as a deserter.  He returned to military control on 19 October 1971. 

5.  On 27 October 1971, court-martial charges were preferred against the applicant for one specification of AWOL from on or about 16 February 1971 to on or about 19 October 1971. 

6.  On 2 November 1971, subsequent to referral of court-martial charges, he consulted with legal counsel and 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 Uniform Code of Military Justice (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 voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  In his request for discharge, he stated/acknowledged that:

* prior to completing this request, he was afforded the opportunity to consult with counsel and he did so
* he was making the request of his own free will and he had not been subjected to any coercion
* he acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate
* he acknowledged that he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement in his own behalf

7.  On 4 November 1971, his immediate, intermediate, and senior commanders recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate.  The intermediate commander stated: 

* he personally interviewed the applicant who understood the consequences of his decision to request a discharge
* he indicated that the reason for his AWOL was family problems; his parents were disabled and he previously applied for a hardship discharge which was disapproved 

8.  On 11 November 1971, consistent with the chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 19 November 1971. 

9.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He completed 5 months and 29 days of active service during this period and he had 245 days of lost time. 

10.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

11.  His father’s death certificate shows his date of death as 16 January 1972.  The notarized criminal record search from the State of North Carolina dated 2 December 2014 shows he has no criminal record.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 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.  

2.  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.  The applicant was over 20 years old at the time of his entry on active duty.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  The applicant’s request for a hardship discharge was considered by his chain of command.  Although his immediate commander recommended approval, the approval authority determined his request did not meet the criteria for a hardship discharge and explained the reasons for his decision.  There would have been many other legitimate avenues to address his issue (compassionate reassignment, emergency leave, chaplain, Army Community Service, Army Emergency Relief) had the applicant chosen to use these available resources.  Instead, after his hardship discharge was denied by the approval authority, he departed in an AWOL status and remained AWOL for 245 days. 

5.  Based on this record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence that would warrant an upgrade of his discharge to general or honorable.   

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)                                         AR20150000724





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ABCMR Record of Proceedings (cont)                                         AR20150000724



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