BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130007844 


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 discharge to an honorable discharge.

2.  The applicant states he believes his discharge was appropriate at the time, but he is now a more stable person and would like to have his discharge upgraded.  As he gets older and understands more that his actions as a young man were shameful, he regrets his actions.  He makes atonement and respectfully requests the Board to consider upgrading his discharge. 

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 U.S. Army Reserve on 30 September 1977 and was discharged on 31 October 1977.  He enlisted in the Regular Army (RA), in pay grade E-1, on 1 November 1977.  At the time of his enlistment, he was 17 years and 4 months of age.  He completed training and was awarded military occupational specialty 62B (construction equipment operator).  He was advanced to pay grade E-3 on 1 October 1978.

3.  He was reported absent without leave (AWOL) on 15 January 1979 and dropped from the rolls of his organization on 14 February 1979.  He surrendered to military authorities and was returned to military control on 5 November 1980.

4.  On 19 November 1980, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Dix, NJ.  The applicant was charged with one specification of being AWOL from 15 January 1979 to 5 November 1980.

5.  On 20 November 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 trial by court-martial.  He acknowledged he could be discharged 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.    

6.  In his statement, the applicant stated his girlfriend was pregnant and he felt he should be there.  He had requested leave and it was denied because they were preparing him for assignment to Germany.  He also requested to be discharged and it was denied.  He decided to leave and he did not approach his chain of command after requesting a discharge.  He didn’t like the Army.

7.  On 4 and 10 December 1980, the applicant’s company and battalion commanders recommended approval of the applicant’s discharge with the issuance of an under other than honorable discharge.

8.  On 17 December 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.

9.  On 30 January 1981, he was discharged accordingly.  He completed 1 year, 5 months, and 10 days of net active service with 660 days of time lost.

10.  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.

11.  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 evidence of record shows the applicant 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.

2.  His contention that he regrets his actions as a young man was carefully considered.  However, he was 17 years and 4 months of age when he enlisted in the RA.  He was nearly 19 years of age when he went AWOL and 20 years of age when he was returned to military control.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  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 fully honorable or general discharge.

4.  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 the requested 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)                                         AR20130007844



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ABCMR Record of Proceedings (cont)                                         AR20130007844


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