BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130014931 


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 an honorable discharge.

2.  The applicant states he entered active duty when he was 17 years old and had no problem doing his job.  He inadvertently got a girl pregnant and went absent without leave (AWOL) to be with her; however, he always returned.

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 28 February 1977 and held military occupational specialty 09B (Trainee).  

3.  His record contains three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))` which show he accepted nonjudicial punishment (NJP) on:

* 11 April 1977 for being AWOL from on or about 1 April 1977 to on or about 5 April 1977
* 2 June 1977 for being AWOL from on or about 2 May 1977 to on or about 4 May 1977 and from on or about 6 May 1977 to on or about 23 May 1977
* 6 February 1978 for being AWOL from on or about 18 December 1977 to on or about 4 January 1978

4.  His record contains three DD Forms 458 (Charge Sheet) showing court-martial charges were preferred against him on:

* 19 May 1978 for being AWOL from on or about 19 March 1978 to on or about…[no end date listed]
* 27 December 1978 for being AWOL from on or about 4 August 1978 to on or about…[no end date listed]
* 29 October 1979 for being AWOL from on or about 25 October to on or about…[no end date listed]

5.  His DA Form 2-1 (Personnel Qualification Record) shows the following periods of lost time:

* 1 April 1977 to 4 April 1944 (4 days) AWOL
* 2 May 1977 to 3 May 1977 (2 days) AWOL
* 6 May 1977 to 22 May 1977 (17 days) AWOL
* 18 December 1977 to 3 January 1978 (17 days) AWOL
* 19 March 1978 to 24 July 1978 (128 days) AWOL
* 29 July 1978 to 30 July 1978 (2 days) AWOL
* 4 August 1978 to 24 September 1979 (417 days) AWOL
* 24 October 1979 to 16 July 1980 (267 days) [reason not listed]



6.  On 2 October 1979, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He acknowledged he understood that he could request discharge for the good of the Service because court-martial charges had been preferred against him under the UCMJ which authorized the imposition of a bad-conduct or dishonorable discharge.  He stated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged that he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service.

	a.  He acknowledged that prior to completing his request for discharge he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offenses, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; possible defenses which appear to be available at this time; the maximum permissible punishment if found guilty and of the legal effect, and the significance of his suspended discharge.

	b.  He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

7.  His full separation packet was not available for review in this case; however, his record does contain a DD Form 214 which shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service and received an under other than honorable conditions discharge.  He completed 2 years, 6 months, and 3 days of creditable active service with 411 days of lost time.

8.  There is no record of him applying to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

9.  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 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.  

	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

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.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  His record contains an extensive history of AWOL.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.



3.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.

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)                                         AR20130014931





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ABCMR Record of Proceedings (cont)                                         AR20130014931



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