IN THE CASE OF:	

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130012855 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he was dismissed from active duty because he would not parachute from a plane
* he was never court-martialed 
* he wants a military headstone for his cemetery plot
* he never used any military benefits and he does not have any records for 30 plus years
* he was never told he was being discharged or the type of discharge he would receive
* he did not receive any paperwork and he assumed he had received an honorable discharge
* his discharge came up when he and his wife started making funeral arrangements
* he was very young and he was pushed aside
* he discovered 30 years later his discharge was unfavorable

3.  The applicant does not provide any 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 on 7 February 1978.

3.  A DA Form 4187 (Personnel Action), dated 2 May 1978, shows the applicant's status changed from present for duty to absent without leave (AWOL) effective 0630 hours on 1 May 1978.

4.  A DA Form 4187, dated 1 June 1978, shows the applicant's status changed from AWOL to dropped from the rolls on 31 May 1978.

5.  On 28 July 1978, the applicant was apprehended by civil authorities and returned to military control.

6.  On 11 August 1978, the applicant was charged with being absent from his unit from on or about 1 May 1978 until on or about 28 July 1978.

7.  On 14 August 1978, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant acknowledged:

* he had not been subjected to any coercion
* he understood that if the discharge request was approved he could be discharged under other than honorable conditions 
* he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life

8.  In conjunction with his request for discharge, the applicant also submitted statements in his own behalf.  He stated:

* after he joined the Army he found out how much he was not suited for the Army
* he tried to get discharged but could not so he decided to stick it out
* his girlfriend called him while he was in training and told him she was pregnant and wanted him to come home so they could get married and this was his reason for going AWOL
* he was not suited for the Army and he would rather be working his factory job
* he made a mistake when he joined the Army

9.  On 30 August 1978, the separation authority approved his request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 28 August 1978, the applicant was discharged as directed.

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.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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. 

	c.  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 is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service 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.

2.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, 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)                                         AR20130012855



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012855



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1