IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130017010 


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 when he was discharged, he was told he would receive a chapter 10 discharge with an honorable characterization of service.  He has since led a productive life and he has been in good standing.

3.  The applicant provides:

* letters of support/character reference letters
* DD Form 214 (Report of Separation 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's record shows he enlisted in the Regular Army on 23 March 1976 and he held military occupational specialty 11D (Armor Reconnaissance Specialist).

3.  He attained the rank/grade of private/E-2 and he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.  He was assigned to Fort Carson, CO. 

4.  On 29 July 1976, while in training, his chain of command initiated separation action against him for fraudulent entry.  He had concealed his prior arrest for the charges of possession and/or use of marijuana.

5.  His immediate and intermediate commanders recommended his retention.  The separation authority ultimately approved the recommendation to retain him on active duty.

6.  On 11 April 1977, he failed to return from ordinary leave.  As a result, his chain of command reported him in an absent without leave (AWOL) status.  He returned to military control on 15 April 1977.

7.  On 18 April 1977, he again departed his unit in an AWOL status and on 15 May 1977, he was dropped from the rolls as a deserter.  He ultimately returned to military control on 6 June 1977.

8.  It appears upon his return from AWOL, his chain of command preferred court-martial charges against him.

9.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains:

	a.  Orders 207-430, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, dated 26 July 1977, ordering his discharge from active duty effective 29 July 1977 with an under other than honorable conditions discharge.

	b.  A DD Form 214 that shows he was discharged on 29 July 1977 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, discharge for the good of the service in lieu of trial by court-martial with the issuance of an Under Other Than Honorable Conditions Discharge Certificate, and he was assigned a separation program designator (SPD) code of JFS (Administrative discharge conduct triable by court-martial).  He completed 1 year, 2 months, and 14 days of total active service with 53 days of time lost. 
10.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

11.  He provides letters of support from individuals who have known him and describe him as a respected, hard-working, and God-fearing individual who is also involved in the community. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.

	b.  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.  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 available record shows the applicant appears to have been charged with the commission of an offense punishable under the Uniform Code of Military Justice 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.  He appears to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 

2.  Although his record is void of all of the specific facts and circumstances that led to his discharge, it contains a DD Form 214 that shows he was discharged on 29 July 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service. 

3.  The applicant does not provide evidence that he was misled or promised an honorable discharge.  The characterization of service for individuals separated under the provisions of chapter 10 of Army Regulation 635-200 is normally under other than honorable conditions.

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)                                         AR20130017010



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ABCMR Record of Proceedings (cont)                                         AR20130017010



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