IN THE CASE OF:	  

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130014292 


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 under other than honorable conditions discharge.

2.  The applicant states he would like his records reviewed for consideration of a discharge upgrade.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge 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 30 August 1979.  He completed basic combat training (BCT) and on 26 October 1979 he was assigned for advanced individual training (AIT) to the 1st Battalion, 5th Training Brigade, Fort Dix, NJ.

3.  On 5 November 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty.

4.  He subsequently completed AIT and received orders for assignment to the 21st Replacement Detachment, Germany, with a report date of 11 December 1979.

5.  On 11 December 1979, he was reported as absent without leave (AWOL) from his assigned unit for failure to report and on 12 January 1980 he was dropped from the rolls (DFR) as a deserter.

6.  On 25 May 1980, he returned to military control at Fort Dix, NJ.  He was assigned to the U.S. Army Personnel Control Facility (PCF), Fort Dix.

7.  On 31 May 1980, he was reported as AWOL from his assigned unit and on 1 June 1980 he was DFR.  On 24 June 1980, he returned to military control at the PCF, Fort Dix.

8.  On 26 June 1980, court-martial charges were preferred against him for one specification each of being:

* AWOL from the 21st Replacement Detachment from 11 December 1979 to 25 May 1980
* AWOL from the PCF, Fort Dix from 31 May to 24 June 1980

9.  On 27 June 1980, he 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 or 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 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.



10.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood 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.

11.  On 8 and 11 July 1980, his immediate and senior commanders recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

12.  On 14 July 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 17 September 1980, he was discharged accordingly.  

13.  The DD Form 214 he was issued shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 6 months and 11 days of net active service with 190 days (6 months and 10 days) of lost time due to being AWOL.

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

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  An under other than honorable conditions discharge was normally considered appropriate.

16.  Army Regulation 635-200, 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.



17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  The evidence of record confirms he received NJP on one occasion for failing to go to his appointed place of duty and he went AWOL on two separate occasions.  He completed BCT and AIT but he was never assigned to a permanent duty station and had over 6 months of lost time at the time of his discharge.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders 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)                                         AR20130014292



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130014292



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1