BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130010661 


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 discharge.

2.  The applicant states he was falsely accused of something he did not do.  He knows he was wrong by being absent without leave (AWOL), but he had just gotten back from bivouac in Grafenwöhr, Germany, where the temperature was below zero and snow was waist deep.  Two days after returning they were told they were going back for two more weeks.  He made a bad decision and decided not to go.  The night before departure he went to a girlfriend's house and stayed there the entire time.  The only time he returned to the barracks was the day his unit returned and one of his friends loaned him a clean shirt to go to formation.  He swears he had nothing to do with what he was accused of and states the person who actually did it stepped up and said he had nothing to do with the crime.

3.  The applicant provides a handwritten letter explaining his circumstances and a copy of his DD Form 214 (Report of Separation 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 enlisted in the Regular Army on 23 June 1976 for a period of 3 years, training as a field artillery crewman, and assignment to Europe.  He completed one-station unit training at Fort Sill, Oklahoma, and was transferred to Fürth, Germany, on 10 October 1976.

3.  On 25 January 1977, nonjudicial punishment was imposed against the applicant for being AWOL from 14 to 22 January 1977.

4.  On 28 January 1977, the applicant was questioned by a U.S. Army Criminal Investigation Command agent regarding an incident of larceny and housebreaking in the applicant's barracks.  The applicant denied any knowledge of the incident.

5.  On 18 February 1977, the applicant gave a sworn statement to the effect that he was an accomplice in the incident, but he only took cigarettes and candy from one locker.

6.  On 17 March 1977, charges were preferred against the applicant for stealing cigarettes and clothing from three fellow Soldiers and for breaking and entering a building at Merrell Barracks in Nürnberg, Germany, with intent to commit larceny.

7.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Nashville, Tennessee, in 1977.  However, his records do contain a duly-authenticated DD Form 214 which shows the applicant was discharged under other than honorable conditions in lieu of trial by court-martial on 12 April 1977 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 9 months and 20 days of active service and had 8 days of lost time due to AWOL.

8.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 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, a discharge under other than honorable conditions was considered appropriate at the time.

	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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he would have voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he would have admitted guilt to the charges against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the nature of the charges against him, the evidence of record, and his otherwise undistinguished record of service.
4.  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 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)                                         AR20130010661



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ABCMR Record of Proceedings (cont)                                         AR20130010661



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