IN THE CASE OF:	  

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130016311 


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 undesirable discharge.

2.  The applicant states during his service he never received an Article 15 or had any disciplinary actions against him.  Due to his mother's death, he went absent without leave (AWOL).  He suffers from post-traumatic stress disorder, primarily due to his discharge.  He has always been proud of his uniform and would like this injustice corrected.

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 31 May 1975.  He completed basic combat training and was assigned for advanced individual training (AIT) to the 1st Training Battalion, Fort Sill, OK.

3.  On 15 September 1975, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for sleeping while on guard duty.  He subsequently completed AIT and was awarded military occupational specialty 13B (Cannon Crewmember).

4.  On 24 October 1975, he was assigned to the 4th Missile Command, Korea.

5.  On 1 July 1976, he was reported as AWOL from his assigned unit and on 1 August 1976 he was dropped from the rolls as a deserter.

6.  On 2 August 1976, he was returned to military control at Fort Dix, NJ, and assigned to the Personnel Control Facility, Fort Dix.

7.  On 9 August 1976, court-martial charges were preferred against him for one specification of being AWOL from 1 July to 2 August 1976.

8.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain the DD Form 214 he was issued that shows he was discharged on 1 September 1976, in the rank of private, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 1 year and 2 months of creditable active service and had 31 days of lost time due to being AWOL.

9.  On 18 December 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge is a separation with honor a0.  Army Regulation 635-200nd 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.

12.  Army Regulation 635-200, 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's record is void of the specific facts and circumstances surrounding his discharge.  However, his available record shows court-martial charges were preferred against him for an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights, and that the type of discharge directed and the reason for separation were appropriate considering the available facts of the case.  

3.  The applicant record shows he received NJP for sleeping on guard duty and had 31 days of lost time due to being AWOL.  His available record shows his service did not meet the standards of acceptable conduct for Army personnel.  In addition, this misconduct would render his service unsatisfactory.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130016311





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ABCMR Record of Proceedings (cont)                                         AR20130016311



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