IN THE CASE OF:	

		BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130018061 


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 correction of his record to show he received a hardship discharge rather than a discharge under other than honorable conditions in lieu of trial by court-martial.

2.  The applicant states that:

* he sought treatment from a doctor for back pain
* his discharge was not good
* his wife was dying and he asked for help
* he had his family and church member write letters of support
* his wife's doctor provided a letter stating that she was very ill and carrying his baby for 7 months
* he gave his best while in the Army
* his body is now in pain from jumping
* he wants his name cleared because he did not deserve the type of discharge he received

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 24 February 1977.  He completed initial entry training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his discharge he held the rank/grade of private (PV1)/E-1.

3.  Upon completion of Basic Airborne training the applicant was assigned to Headquarters and Headquarters Company, 2nd Battalion (Airborne), 505th Infantry Regiment, 82nd Airborne Division on 8 July 1977.

4.  He departed his unit in an absent without leave (AWOL) status on 25 July 1977.  On 23 August 1977, his unit dropped him from the rolls.  On 25 August 1977, he returned to military control and his status was changed to present for duty.

5.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains a memorandum, dated 19 September 1977, which shows he requested to be placed in an excess leave status pending processing of his request for discharge from the Army under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service.  On
28 September 1977, the applicant's request for excess leave was approved by the acting division commander and he signed out on leave the following day. 

6.  Headquarters, 82nd Airborne Division, Orders 205-35, dated 26 October 1977, show the applicant's rank/grade was reduced from PV2/E-2 to PV1/E-1 effective 26 October 1977.

7.  Headquarters, XVIII Airborne Corps and Fort Bragg, Orders 216-61, dated 8 November 1977, show the applicant was discharged effective 9 November 1977.



8.  His record also contains Headquarters, XVIII Airborne Corps and Fort Bragg, memorandum, dated 9 November 1977, Subject:  Expulsion from United States Military Reservation.  This memorandum shows the applicant was notified that he was prohibited from entering or reentering the limits of Fort Bragg Military Reservation by law.

9.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, on 9 November 1977.  He completed 7 months and 15 days of total active service with 31 days of lost time.

10.  The applicant's record is void of any evidence showing that he sought assistance from his chain of command or any other Army agency, due to coping with any type of family hardship.

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

12.  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 in lieu of trial by court-martial 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, the 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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service at that time.

13.  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.



14.  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 contention that his record should be corrected to show he received a hardship discharge was carefully considered.

2.  Although the applicant contends that he sought help dealing with a family hardship, there is no evidence in his record and he has not provided sufficient evidence to support this contention.

3.  The evidence clearly shows he was AWOL for a period of 31 days.

4.  The evidence of record indicates he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130018061



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ABCMR Record of Proceedings (cont)                                         AR20130018061



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