IN THE CASE OF:	  

		BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120012714 


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 to an honorable discharge.

2.  The applicant states:

* he was ill-advised and misinformed when he accepted the under other than honorable conditions discharge
* he did not fully understand the implications of his decision nor did he understand what such discharge entails
* he had been a good Soldier, serving in Germany when the Red Cross notified him that his father was terminally ill
* he took emergency leave but his flight was delayed and upon arrival home, he discovered his father had passed and he missed the funeral
* his entire family was in disarray and they all looked up to him for support and guidance; he was under a lot of pressure and stress
* he fell into a deep depression and neglected to let his commander know of the situation in a timely manner
* when things settled down, he reported to Fort Indiantown Gap, PA, where his commander ordered him to report to Fort Dix, NJ, where he was poorly advised of his options
* since his discharge, he has been a responsible member of the community with a successful career
* his father had previously served and his son also served - at his urging - with two tours in Iraq
* he just wants to remove this blemish from his record and restore his family's legacy of military service

3.  The applicant provides the following documents:

* A print-out of the definition of an under other than honorable conditions discharge
* DD Form 214 (Report of Separation from Active Duty)
* Father's death certificate
* Father's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge)
* Son's U.S. Navy DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 5 November 1975 and he held military occupational specialty 11E (Armor Crewmember).  He served in Germany from 23 March 1976 to on or about 24 October 1979.

3.  His records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* On 8 March 1977, disobeying a lawful order on two separate occasions
* On 9 August 1977, for failing to go at the time prescribed to his appointed place of duty

4.  On 6 December 1977, he departed his unit on leave; however, he did not return.

5.  On 24 December 1977, his unit commander reported him in an absent without leave (AWOL) status and on 22 January 1978, he was dropped from the rolls of the Army as a deserter.

6.  He ultimately surrendered to military authorities at Fort Indiantown Gap, PA, on 6 March 1978.  He was subsequently attached to Company A, U.S. Army Control Facility, Fort Dix, NJ, effective 8 March 1978. 

7. On 30 January 1979, his chain of command in Germany preferred court-martial charges against him for one specification of violating Article 85 of the UCMJ for on or about 24 December 1978, without authority and with intent to remain away there from permanently, absenting himself from his unit.

8.  The facts and circumstances of his discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows he was discharged on 10 April 1978 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of a court-martial, with a character of service of under other than honorable conditions.  He completed a total of 2 years, 
2 months, and 26 days of creditable active service, with 70 days of time lost.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

10.  He provides:

* A printout describing an under other than honorable conditions discharge as the most severe form of administrative discharge
* His father's Army separation document (8 May 1943 through 4 March 1946) and his death certificate (12 December 1977)
* His son's U.S. Navy separation document (3 March 1996 through 1 March 2006)

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in 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, an under other than honorable conditions discharge is 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.

12.  Article 85 of the UCMJ is a punitive article and covers desertion.  Depending on the elements and circumstances, violation of this Article has a maximum punishment as follows:

	a.  Completed or attempted desertion with intent to avoid hazardous duty or to shirk important service: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

	b.  Other cases of completed or attempted desertion (1) when terminated by apprehension: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years and (2) when terminated otherwise: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to an honorable discharge and the evidence he submitted, including his father's and son's military separation documents, were carefully considered; however, they are not sufficiently mitigating to grant him the requested relief.

2.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 10 April 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during his last enlistment.  As such, there is no reason to upgrade his discharge.

4.  There is no evidence in the applicant's records and he provides none to show he sought help from his chain of command regarding the difficulties he encountered at the time.  He could have requested an extension of leave, a compassionate reassignment, and possibly a hardship discharge.  He chose to go AWOL and it appears he also chose not to face a court-martial which could have adjudged a much more severe punishment.

5.  The available evidence shows a military career that included two instances of NJP and an instance of AWOL.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general or an honorable discharge.  Therefore, he is not entitled to relief.

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)                                         AR20120012714





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ABCMR Record of Proceedings (cont)                                         AR20120012714



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