IN THE CASE OF:	  

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130013098 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

	a.  He was discharged because he was underage and because they gave him extended leave.

	b.  He was arrested the day after his 17th birthday and he enlisted on 
22 September 1978.

	c.  After going absent without leave (AWOL) and once they found out he was underage, they gave him extended leave which violated their own contract.

	d.  They did not do the proper background check.  Otherwise, they would have known through his social security number that he was 16 years of age and that he did not have a guardian to sign his enlistment papers.  

	e.  Because of the person responsible for doing the background check did not do what was needed to discover the error, they gave him extended leave while he was AWOL in order to cover up the error.  

	f.  They gave him extended leave while he was AWOL in order to wait until he was 17 years old and of legal age.  They then used that to give him an under other than honorable conditions discharge and to make it look like it was his fault.
3.  The applicant also states that, if necessary, he is willing to appear before the Board; however, he will need advanced notice in order to make the necessary preparations.  

4.  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.  On 23 August 1978, prior to his enlistment in the Army National Guard (ARNG), the applicant completed a DD Form 1966 (Application for Enlistment - Armed Forces of the United States) in which he listed his date of birth as 
3 June 1960.  He authenticated this form with his signature and acknowledged that if any information was knowingly false or incorrect, he could be prosecuted under Federal civilian or military law and/or could receive a less than honorable discharge.  

3.  He enlisted in the ARNG on 28 August 1978.  Orders dated 14 September 1978 ordered him to initial active duty for training with a report date of 
20 September 1978.  

4.  On 30 September 1978, he departed AWOL and remained AWOL until 
22 October 1978 (23 days).  

5.  He accepted nonjudicial punishment on 24 October 1978 for his AWOL offense.  

6.  On 31 October 1978, he again departed AWOL and remained AWOL until surrendering to military authorities on 27 August 1979 (300 days).

7.  On 29 August 1979, court-martial charges were preferred against him for his second AWOL offense. 
8.  On 31 August 1979, he consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

9.  He acknowledged in his request that he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He was advised of:
	
* the nature of his rights under the UCMJ
* the elements of the offense with which he was charged
* any relevant lesser included offense and the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the possible defenses which appear to be available
* the maximum permissible punishment if found guilty

10.  He also acknowledged he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.  

11.  On 17 September 1979, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  On 3 October 1979, he was discharged accordingly.  

12.  There is no evidence in his available records that shows he was discharged because of his age or that he was granted extended leave.

13.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 23 April 1982.  

14.  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, a discharge under other than honorable conditions 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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides guidance for hearings and the disposition of applications.  It states that applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully considered.  

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge, he admitted he was guilty of the charge.

3.  His voluntary request for discharge 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 laws and regulations. There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes nonjudicial punishment, court-martial charges for AWOL, and 323 days of lost time.  Based on the seriousness of his offense and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  His contentions were noted; however, there is no evidence in his available military records, and he provided none, which substantiate his contentions.

6.  He indicated that he is willing to appear before the Board.  However, there are sufficient records available to conduct a fair and impartial adjudication of his case.  Additionally, a personal appearance by him would not change the facts surrounding his separation processing for misconduct.  Therefore, a formal hearing is not required to serve the interest of justice in this case.

7.  Based on the foregoing, there is no basis to grant 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)                                         AR20130013098



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ABCMR Record of Proceedings (cont)                                         AR20130013098



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