IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130006137 


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 a general discharge.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident and not his overall service record.  He appeals to the Board to consider his overall service record and not the one isolated incident.

3.  The applicant provides no additional 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, in pay grade E-1, on 6 July 1978. He was assigned to Fort Benning, GA, for completion of training. 

3.  He was reported absent without leave (AWOL) on 2 September 1978 and returned to military control on 5 September 1978.  He completed advanced individual training and was awarded military occupational specialty 11C (indirect fire infantryman).  

4.  On 9 September 1978, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 2 to 5 September 1978.  

5.  He was advanced to pay grade E-2 on 9 January 1979.

6.  He again accepted nonjudicial punishments under Article 15, UCMJ, on 1 May and 29 May 1979 for absenting himself from his appointed place of duty on 4 April and 15 May 1979.  His punishments included a reduction to pay grade E-1 and suspended forfeitures of pay and restrictions and extra duty.  

7.  He was again reported AWOL on 30 May 1979.  On the same day, the suspension of punishment for forfeitures, extra duty, and restrictions imposed were vacated and ordered duly executed.  He returned to military control on 7 June 1979.  

8.  He was further reported AWOL on 11 June 1979 and dropped from the rolls of his organization as a deserter on 10 July 1979.  He surrendered to military authorities and was returned to military control on 4 August 1980.

9.  On 14 August 1980, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Special Processing Center, Personnel Control Facility, Fort Knox, KY.  The applicant was charged with one specification of being AWOL from 11 June 1979 to 4 August 1980.

10.  On 15 August 1980, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trail by court-martial.  He acknowledged he could be discharge under other than honorable conditions and the results of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.    

11.  In his statement, the applicant stated that he was requesting to be discharged because the Army was just not for him.  He was not pleased with the pay he was receiving.  His parents pressured him to join the Army.  He now had a level head and had enrolled in a junior college and hoped to put his basketball talent to use.  Also, his father was very sick and he wanted to be around his father as much as possible.  

12.  On 9 September 1980, the applicant’s company and battalion commanders respectively recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge.

13.  On 16 September 1980, the separation authority approved the applicant’s request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

14.  On 14 October 1980, he was discharged accordingly.  He completed 2 years, 1 month, and 6 days of net active service with 431 days of time lost.

15.  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.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

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

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


   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was 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 he was twice punished under Article 15 for being AWOL.  Due to his additional periods of AWOL his suspended punishments were vacated.  He again departed AWOL in June 1979 and was dropped from the rolls of his organization.  

2.  Upon his return to military control, he was charged with one specification of being AWOL from June 1979 to August 1980.  After consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  He also acknowledged he could be discharged under other than honorable conditions.  He stated the Army was just not for him and he requested to be discharged.  As a result, on 14 October 1980, he was discharged accordingly.

3.  He was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  He 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 the rights of the applicant were fully protected throughout the separation 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 this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

5.  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.  Therefore, he is not entitled to 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)                                         AR20130006137





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ABCMR Record of Proceedings (cont)                                         AR20130006137



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