IN THE CASE OF: BOARD DATE: 2 October 2014 DOCKET NUMBER: AR20140003758 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 undesirable discharge. 2. The applicant states, in effect: * he believes his character of service is unjust because he experienced extreme hazing that precipitated him going absent without leave (AWOL) * he was being harassed and hazed by a group of peers in approximately March 1975 on a regular basis to the point that he was being seen by a psychiatrist * they duct-taped his arms to the chair and the situation became so bad that he believed the only way out was going AWOL * he was out for some time and he decided to turn himself in; he was put in jail for a week and he was then asked if he wanted to go to Fort Leavenworth or get out on a chapter 10 * he opted to take the discharge and get out; he has regretted this decision * he went AWOL to escape physical and mental harassment; he was afraid to rat on his peers; whenever people went to their superiors, they would be told to deal with it 3. The applicant provides his DD Form 214 (Report of Separation and Record of Service). 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's records show he enlisted in the Regular Army on 30 December 1972. He was trained in and held military occupational specialty 31B (Field Radio Repairman). 3. On 10 September 1973, at Fort Campbell, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 6 to 9 September 1973. 4. On 4 March 1974, at Fort Campbell, KY, he again accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty on 1 March 1974. 5. On 10 May 1974, he departed his unit in an AWOL status; however, he returned to military control on 14 May 1974. 6. On 10 June 1974, he departed his unit in an AWOL status and on that same date, he was dropped from Army rolls as a deserter. He ultimately returned to military control on 12 December 1974. He was placed in pre-trial confinement. 7. On 17 December 1974, his command preferred court-martial charges against him for one specification of being AWOL from 10 June to 12 December 1974. 8. On 18 December 1974, the applicant consulted with legal counsel and he 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 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 requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge he indicated that: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service * he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf 9. In his statement, he indicated that he believed himself to be mentally unfit for the military. He could not adjust to the Army way of life. If he had to stay in too much longer, he would go insane. He desired to be withdrawn from the military for the good of all concerned. 10. On 18 and 19 December 1974, his immediate, intermediate, and senior commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate. 11. On 23 December 1974, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. 12. On 22 January 1975, the applicant was accordingly discharged. The DD Form 214 he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with an Undesirable Discharge Certificate. He completed 1 year, 6 months, and 18 days of active service and he had 189 days of lost time. 13. On 19 June 1979, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was proper and equitable. Accordingly, the ADRB denied his petition for a change to the type and nature of his discharge. 14. 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 and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate. a. 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. 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 that his undesirable discharge be upgraded was carefully considered. 2. 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. 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. With respect to his arguments: a. Nothing in his records and nothing he provides supports his contention that he was harassed or hazed. In the statement he submitted in connection with his voluntary request for discharge, he clearly stated he could not adjust and wanted out of the Army. He did not mention anything about hazing or harassment. b. There is nothing in the applicant's record that shows he was forced to choose the discharge. He went AWOL by choice. When presented with his options, he willingly chose the discharge. It was not the first time he was AWOL. He had two other prior periods of AWOL. 4. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his service to either honorable or general. 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) AR20140003758 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140003758 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1