BOARD DATE:	    1 October 2015

		DOCKET NUMBER:  AR20150003117 


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 to a general discharge under honorable conditions.

2.  The applicant states:

* his discharge should be upgraded because other individuals who served during the Vietnam era have been forgiven for their mistakes
* he was a young man, only 18 years old at the time of his military service, and was stupid as most boys are
* at the time he also had a child and a young lady he had every intention of marrying as that was the right thing to do
* he had never previously heard of the Board's forgiveness of other individuals' errors until a former Army buddy of his informed him

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 inducted into the Army of the United States on 13 February 1969 at 19 years of age.

3.  On 1 May 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 27 April 1969 through 30 April 1969.

4.  On 3 June 1969, he again received NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the prescribed time on 3 June 1969.

5.  Headquarters, Special Processing Battalion (Provisional), Special Court-Martial Order Number 3231, dated 19 November 1969, shows he was charged with and found guilty of being AWOL from his unit from 16 July 1969 through 21 October 1969.

6.  His records indicate he was again AWOL from 15 January 1970 and was subsequently dropped from the Army rolls as a deserter on 16 February 1970.  He was returned to military control on 29 September 1970 and placed in pre-trial confinement through 5 October 1970.

7.  On 13 October 1970, he voluntarily requested 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.  He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him.  He did not submit statements in his own behalf.

8.  On 6 November 1970, he was discharged under other than honorable conditions.  His DD Form 214 (Armed Forces of the United States Report of transfer or Discharge) shows he completed 8 months and 25 days of total active service with 364 days of lost time due to being AWOL.

9.  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.

10.  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 sentence 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 3-7b 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.

DISCUSSION AND CONCLUSIONS:

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

2.  His records show he was AWOL on three occasions totaling 364 days of lost time.  These are offenses punishable under the UCMJ with a punitive discharge.

3.  He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting him a general discharge.


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)                                         AR20150003117





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ABCMR Record of Proceedings (cont)                                         AR20150003117



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