IN THE CASE OF:	  

		BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20130004002 


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 an honorable or a general discharge.

2.  The applicant states he was very young and not used to taking orders.  He was a little rebellious and did not get along well with others.  He now regrets this. He is older and feels he has done alright since his discharge.  He did not understand the conditions of his discharge and the way it would affect his life later on.  He feels if he could have gotten along better with others it may have stopped him from being absent without leave (AWOL) and helped his time in the service.  He also feels he is now a better person, more responsible, and more open to people.  He is getting older and wants to be eligible for health benefits in the future.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of his discharge certificate.

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 born on 6 June 1961.  He enlisted in the Regular Army in pay grade E-1 on 12 June 1979.  At the time of his enlistment, he was 18 years of age.  He did not complete advanced individual training (AIT) and was not awarded a military occupational specialty. 

3.  He was reported as AWOL on 4 September 1979 and he returned to AIT on 7 September 1979.

4.  On 12 September 1979, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from 4 to 7 September 1979.  He did not appeal the punishment.

5.  He was again reported as AWOL on 17 October 1979 and he was dropped from the rolls of the Army as a deserter on 15 November 1979.  He surrendered to military authorities on 29 November 1979.

6.  On 3 December 1979, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Ord, CA.  The applicant was charged with one specification of being AWOL from 17 October to 29 November 1979.

7.  On 8 December 1979 after consulting with counsel, the applicant 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 Separations), chapter 10.  He acknowledged he could be discharged under other than honorable conditions and furnished a bad conduct or dishonorable discharge.  He further acknowledged the results of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 13 December 1979, the applicant's company commander recommended approval of the applicant's discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The company commander stated the applicant indicated he was AWOL because he felt the Army didn't live up to his expectations and he desired a discharge because the Army held no successful future for him.  The applicant also stated that if he were returned to duty he would again be AWOL.

9.  On 17 December 1979, the personnel control facility commander recommended approval of the applicant's request with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 21 December 1979, the separation authority approved the applicant's request under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to pay grade E-1 and discharge under other than honorable conditions.

11.  On 11 January 1980, he was discharged accordingly.  He completed 5 months and 17 days of net active service with 46 days of lost time.

12.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Chapter 10 provides that a Soldier whose conduct renders him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may request a discharge for the good the service in lieu of trial by court-martial.  The regulation requires that there have been no element of coercion involved in the submission of such a request and that the applicant is provided an opportunity to consult with counsel.  The Soldier is required to sign the request indicating he understands he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation requires that the request be forwarded through channels to the general court-martial convening authority.  A discharge under other than honorable conditions will normally be furnished to an individual who is discharged for the good of the service.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

	c.  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 was carefully considered.  However, the evidence of record shows nonjudicial punishment was imposed under Article 15 for being AWOL.  He was AWOL again and upon his return, his command preferred court-martial charges against him.  He was afforded the opportunity to seek legal advice and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the service under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he could be discharged under other than honorable conditions.  Further, he acknowledged the results of such a discharge.  As a result, he was discharged accordingly on 11 January 1980.

2.  His contention that his youth made him do the wrong thing and impacted his ability to serve successfully is without merit.  He was 18 years of age when he enlisted in the Regular Army.  There is no evidence he was any less mature than other Soldiers of the same age who served successfully and completed their terms of service.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

5.  His desire to have his discharge upgraded so he can qualify for medical and/or other veterans' benefits administered by the Department of Veterans Affairs for service-connected conditions is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for medical or other veterans' benefits.







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)                                         AR20130004002



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ABCMR Record of Proceedings (cont)                                         AR20130004002



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