BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130013406 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

* his immediate family was going through many crises such as the loss of a loved one, death, and many other issues which affected his service
* he received an honorable discharge after his first enlistment
* he has tried to address the issue of his discharge several times but was unable to locate his documents
* he loved his country and is willing to do all he can to correct his status as a fellow veteran
* he is not proud of his past conduct
* he earned his diploma which shows he was putting forth effort to be all he could be with the opportunity given to him

3.  The applicant provides:

* 2 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Department of Defense Overseas Schools Diploma




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 8 December 1972.  He was discharged on 9 December 1974 for immediate reenlistment.  He reenlisted on 10 December 1974.

3.  On 18 February 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* being absent without leave (AWOL) on or about 20 January 1975 until on or about 6 February 1975
* possessing some amount [2 pills] of a controlled substance on or about 28 January 1975

4.  Special Court-Martial Order Number 5, issued by Headquarters, 1st Engineer Battalion, Fort Riley, KS, dated 23 March 1977, shows the applicant was found guilty of being AWOL from on or about 11 November 1976 until on or about 13 December 1976.  He was sentenced to a reduction in rank from specialist five to private first class.  His sentence was adjudged on 14 February 1977.

5.  A DA Form 4187 (Personnel Action), dated 10 March 1977, shows the applicant's status changed from present for duty to AWOL on 9 March 1977.

6.  On 8 April 1977, his status changed from AWOL to dropped from the rolls.

7.  On 7 October 1977, the applicant was apprehended by civilian authorities and returned to military control.

8.  On 11 October 1977, the applicant was charged with being AWOL from his unit from on or about 9 March 1977 until on or about 7 October 1977.

9.  On 12 October 1977, 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 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 admitted guilt to being AWOL and acknowledged:

* 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

10.  On 31 October 1977, the separation authority approved his request for discharge under other than honorable conditions and directed his reduction to private/E-1.

11.  On 8 November 1977, the applicant was discharged as directed.

12.  On 18 December 1979, the applicant was notified that his request for an upgrade of his discharge was denied.

13.  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, an under other than honorable conditions discharge is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered.

2.  Records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial 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 his rights were fully protected throughout the separation process.

3.  He elected to be AWOL on more than one occasion, accepted NJP, and had one court-martial conviction.  When court-martial charges were preferred against him a second time, he voluntarily chose to be discharged instead of facing the charges.

4.  Based on his record of indiscipline, the applicant's second term of service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  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)                                         AR20130013406



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ABCMR Record of Proceedings (cont)                                         AR20130013406



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