IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130004155 


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. 

2.  The applicant states:

* it has been a long time since he was discharged from the Army; an upgrade would help him get better jobs
* his company commander at the time complained of him (the applicant) for messing around with the young troops
* he was seen by a military attorney who told him he was guilty of the charges; he became scared and did not know what to do
* he took off his uniform then left in an absent without leave (AWOL) status but the Army never came looking for him
* he loves the Army and wanted to make a career out of it as several of his siblings served in the Army; he was a good Soldier who made the rank of sergeant (SGT) at the age of 20
* he did not deserve what happened to him; he was kicked out for one mistake in his life and has had to live with this for the past 29 years  

3.  The applicant does not provide any 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 enlisted in the Regular Army (RA) on 5 September 1979 and he held military occupational specialty 11B (Infantryman).  He also executed a reenlistment in the RA on 5 March 1982 and he was promoted to SGT in July 1982. 

3.  He served in Korea from June 1981 to June 1982.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer (NCO) Professional Development Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  Upon completion of his Korea tour, he was reassigned to the U.S. Army Reception Station, Fort Dix, NJ, as a Processing NCO.  

5.  On 4 August 1982, he departed his unit in an AWOL status but he returned to military control on 8 August 1982. 

6.  On 16 August 1982, he again departed his unit in an AWOL status but he returned to military control on 17 August 1982. 

7.  On 1 September 1982, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 4 to 8 August 1982 and for failing to go at the time prescribed to his appointed place of duty. 

8.  His records contain a DA Form 2627 (Record of Proceedings Under Article 15 of the UCMJ), dated 3 September 1982, wherein his commander was considering whether he should be punished under Article 15 for eight specifications of violating lawful orders by borrowing money from receptees. 

9.  On 7 September 1982, he departed his unit in an AWOL status and the same date he was dropped from the Army rolls as a deserter.  He surrendered to military authorities on 11 December 1983. 

10.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains:

	a.  Orders 012-80, issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, on 12 January 1984, reducing him to the lowest enlisted grade and ordering his discharge effective 26 January 1984.  

	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 26 January 1984 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He was assigned a separation program designator (SPD) code of JFS (Administrative discharge conduct triable by court-martial).  He completed 
3 years, 1 month, and 13 days of total active service and he had lost time from 
4 to 7 August 1982, 30 August 1982, and 7 September 1982 to 10 December 1983. 

11.  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. 

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

	a.  Chapter 10 of that regulation provides 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.

	b.  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.

	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 available record shows the applicant appears to have been 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.  He would have voluntarily requested discharge from the Army in lieu of trial by court-martial. 

2.  Although his record is void of all of the specific facts and circumstances that led to his discharge, it contains a DD Form 214 that shows he was discharged on 26 January 1984 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation 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 his discharge accurately reflects his overall record of service. 

3.  The Army never had nor does it now have a policy wherein the characterization of service is upgraded due to passage of time.  Each case is considered on its own merits.  

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or 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)                                         AR20130004155





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ABCMR Record of Proceedings (cont)                                         AR20130004155



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