BOARD DATE:	  16 April 2014

		DOCKET NUMBER:  AR20130013593 


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 discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states he was very young and having trouble with his son's mother.  He thought he was doing the right thing, but he now knows he was wrong.  He is currently disabled and he has minor children.  An upgrade of his discharge will enable him to get help from the local community.

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 Regular Army on 26 September 1978 for a period of 3 years.  At that time he was 18 years of age.  Upon completion of training he was awarded military occupational specialty 52D (Power Generation Equipment Repairer).

3.  He accepted nonjudicial punishment (NJP) on two occasions for:

* failing to report at the appointed time and place on 30 May 1979
* being absent without leave (AWOL) from 18 December 1978 to 2 January 1979

4.  On 30 January 1980, court-martial charges were preferred against the applicant for being AWOL from 2 July 1979 to 21 January 1980.

5.  On 30 January 1980, the applicant consulted with legal counsel and he was informed that he was pending trial by court-martial for violation of Article 86 (AWOL), Uniform Code of Military Justice (UCMJ).  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be discharged under conditions other than honorable, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were given a discharge under other than honorable conditions.

	c.  He was also advised that he could submit any statements he desired in his own behalf.

	d.  The applicant and his counsel placed their signatures on the document.

	e.  The applicant submitted a statement in his own behalf wherein he stated that he was 20 years old, and he had a general education diploma and 2 years of college to be an automotive mechanic.  He stated he wanted to be discharged from the Army because of family problems; his step-father beats his mother all the time and she has no other place to go.  He added that his niece lives with his mother and she could live with him if his request for discharge is approved.  He would be getting married in February (1980) and his future wife doesn't like him being in the Army.  He stated he couldn't handle being in the Army because he's not used to being bossed around.  His civilian job is being an automotive mechanic and he's his own boss.

6.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge and recommended characterization of his service as under other than honorable conditions.

7.  The separation authority approved the applicant's request for discharge and directed characterization of his service as under other than honorable conditions.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 26 September 1978 .  He was discharged under other than honorable conditions on 24 March 1980 under the provisions of Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

	a.  He completed 10 months and 26 days of net active service during this period.

	b.  Item 29 (Dates of Time Lost During This Period) shows he had lost time as follows:

* 18 December 1978-1 January 1979 (15 days)
* 2 July 1979-20 January 1980 (203 days)

9.  A review of the applicant's military personnel records failed to reveal any evidence to show the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  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 is normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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.  The applicant contends that his discharge under other than honorable conditions should be upgraded to general under honorable conditions because he was young and immature and he thought he was doing the right thing when he was AWOL.

2.  Considering the applicant successfully completed training and was awarded MOS 52D, his contention that he was immature is not supported by the evidence of record.  In addition, there is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's reason for being AWOL is not in dispute.  However, there is no evidence of record to show he attempted to resolve his personal/family problems through the use of leave or by requesting a hardship discharge.

4.  The evidence of record shows the applicant was charged with being AWOL, he acknowledged being AWOL from 2 July 1979 to 21 January 1980, and he elected to request discharge in lieu of trial by court-martial.

5.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

6.  During the period of service under review, the applicant received NJP on at least two occasions, he had two separate periods of AWOL totaling 218 days of time lost, and he completed only about 11 months of his 3-year enlistment obligation.  Thus, the applicant's record of service during the period under review 
did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

7.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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 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)                                         AR20130013593



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ABCMR Record of Proceedings (cont)                                         AR20130013593



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