BOARD DATE: 21 August 2014 DOCKET NUMBER: AR20140000226 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 that his undesirable discharge be upgraded to a fully honorable discharge. 2. The applicant states that he was called a stupid “SOB” by a lieutenant because he told an inspection team that he was not a school trained mechanic. He was then called in and was told that he had been overpaid and would not receive any pay until the overpayment was all paid back. He had a family to support and went absent without leave (AWOL). 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 serving in the Army National Guard as a supply specialist when he enlisted in the Regular Army on 14 March 1966 for a period of 3 years. He was initially assigned to Fort Sill, Oklahoma. 3. On 8 December 1966, he was transferred to SHAPE, Belgium with duty in Paris, France. On 14 March 1967, he was honorably discharged for the purpose of immediate reenlistment. On 15 March 1967, while serving in the pay grade of E-4, he reenlisted for a period of 6 years. 4. On 15 April 1967, nonjudicial punishment (NJP) was imposed against him for writing a bad check. 5. He departed Belgium on 7 November 1968 for assignment to Fort Knox, Kentucky where he remained until 19 May 1969 when he was transferred to Fort Hood, Texas. 6. On 20 October 1969, NJP was imposed against the applicant for speeding on post. 7. On 16 March 1970, NJP was imposed against him for being AWOL from 5 February to 4 March 1970. 8. The applicant again went AWOL on 24 March 1970 and remained absent in desertion until he was apprehended by civil authorities on 14 July 1971. He was returned to military control on 23 July 1971 when charges were preferred against him for being AWOL from 24 March 1970 to 14 July 1971. 9. The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Veterans Administration Regional Office in Little Rock, Arkansas. However, his records do contain a DD Form 214 (Report of Separation from Active Duty) which shows that he was discharged under other than honorable conditions on 21 September 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and issued an Undesirable Discharge Certificate. He had served 4 years, 5 months, and 15 days of active service and had 569 days of lost time due to AWOL and civil confinement. 10. On 3 February 1980, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and after reviewing the facts and circumstances of his case, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request on 5 August 1981. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions is normally considered appropriate. However, at the time an undesirable discharge was normally given. 12. Army Regulation 635-200, paragraph 3-7a, provides that 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. 13. Army Regulation 635-200, 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. In the absence of evidence to the contrary it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtsmartial was administratively correct and in conformance with applicable regulations. 2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. 3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. 4. The applicant's contentions have been considered. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the absence of evidence to support his contentions and mitigating circumstances. His service simply does not rise to the level of even 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 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) AR20140000226 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140000226 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1