IN THE CASE OF:  	  

		BOARD DATE:  25 August 2015	  

		DOCKET NUMBER:  AR20150000744 


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 other than honorable conditions.

2.  The applicant states:

* he was young and irresponsible 
* he blamed everything on the military
* he could not face reality
* he asks for forgiveness

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 28 June 1972.

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 16 November 1966.  He was honorably discharged on 7 March 1969 for the purpose of immediate reenlistment.  He reenlisted on 8 March 1969.

3.  Records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 16 May 1969 for being absent without leave (AWOL) on or about 21 April 1969 until on or about 13 May 1969
* on 27 January 1970 for being AWOL on or about 4 January 1970 until on or about 22 January 1970
* on 18 August 1970 for disobeying orders and being AWOL on or about 1 July 1970 until on or about 23 July 1970

4.  On 23 July 1971, he underwent a mental status examination which shows he met retention standards, he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

5.  Headquarters Command, U.S. Army Training Center, Infantry, and Fort Polk, Special Court-Martial Order Number 291 dated 13 August 1971, shows he pled guilty and was found guilty of being AWOL from on or about 15 February 1971 until on or about 25 May 1971 and from on or about 31 May 1971 until on or about 14 July 1971.  He received a suspended reduction in rank from E-4 to E-1 and a suspended sentence of confinement at hard labor for 4 months.

6.  Headquarters Command, U.S. Army Training Center, Infantry, and Fort Polk, Special Court-Martial Order Number 316 dated 30 August 1971, shows his suspended sentence to confinement at hard labor for 4 months was vacated.

7.  On 17 September 1971 he accepted NJP for being AWOL from on or about 9 August 1971 until on or about 28 August 1971.

8.  On 30 November 1971 his status was changed from present for duty to AWOL.  On 30 December 1971 he was dropped from the rolls.

9.  On 17 May 1972 he was returned to military control.

10.  On 19 June 1972, charges were preferred against the applicant for being AWOL from on or about 30 November 1971 until on or about 17 May 1972.

11.  On 19 June 1972, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial after consulting with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge; the effects of requesting discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and the rights available to him.

12.  In his request for discharge, he acknowledged:

* he understood he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Department of Veterans Affairs as a result of such a discharge
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions

13.  In conjunction with his request for discharge, he provided a statement in which he indicated:

* he could not cope with the military because of his long periods of AWOL and it would be difficult to start over again after 5 years of service
* he would not return to duty under any circumstance
* he got married during his last period of AWOL and discovered he could support his family better being a civilian

14.  On 21 June 1972, his immediate commander recommend issuance of an undesirable discharge.  On 22 June 1972, his intermediate commander recommended an undesirable discharge.

15.  On 23 June 1972, the separation authority approved the applicant's request for discharge, directed the issuance of an undesirable discharge, and directed his reduction to the lowest enlisted grade.

16.  On 28 June 1972, he was discharged accordingly.  His DD Form 214 for the period under review shows he completed 2 years, 7 months, and 2 days of net active service with 10 months and 25 days of service in Vietnam and 264 days of lost time.  He completed 4 years, 9 months, and 24 days of total active service.

17.  On 16 October 1980, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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.  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 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.  After consulting with counsel and being advised of his rights, he 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 for this period.

3.  His repeated periods of AWOL clearly diminished the overall quality of his service below that meriting an honorable or a general discharge.  In view of the foregoing evidence of record, there is no basis for granting the applicant's request.


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)                                         AR20150000744



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ABCMR Record of Proceedings (cont)                                         AR20150000744



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