IN THE CASE OF:	   

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018223 


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, in effect, an upgrade of his character of service.

2.  The applicant states his grandmother adopted him and she was his only guardian.  When he received the Red Cross message stating she was dying he requested a hardship discharge.  He loved serving in the military and he loved his job.  If he could return to the military he would but at this point he is too old and he is disabled.  He was recently informed that his benefits were being stopped because he had a dishonorable discharge.  His service was not dishonorable.  He would like to go back to school so that he can get a good job, but he is unable to do so because of his characterization of service.  This situation has caused him to become homeless.

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 4 September 1974 and held military occupational specialty 13E (Cannon Fire Directions and Support Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  He was honorably discharged on 28 November 1976 and reenlisted the following day.

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

* 10 January 1977 to 3 February 1977 - absent without leave (AWOL) 
(25 days)
* 2 September 1977 to 30 September 1977 - AWOL (29 days)
* 1 October 1977 to 16 November 1977 - dropped from rolls (DFR) (47 days)
* 17 November 1977 to 21 November 1977 - confinement (CCF) (5 days)

5.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), showing he accepted non-judicial punishment (NJP) on 1 March 1977 for being AWOL from on or about 
10 January 1977 to on or about 4 February 1977.

6.  His record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 25 January 1978, wherein his commander stated the applicant had been AWOL twice and was currently pending a court-martial for the second AWOL.

7.  His record does not contain a Red Cross message or any evidence showing he requested a hardship discharge.

8.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record contains a DD Form 214 that shows on 21 February 1978 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, by reason of administrative discharge - conduct triable by court-martial with an under other than honorable conditions discharge.  He completed 11 months and 7 days of creditable active military service with 106 days of time lost.

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

10.  Army Regulation 635-200, chapter 10, states 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.

	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 applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) 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.  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 would have admitted guilt and waived his opportunity to appear before a court-martial.  

2.  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. Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  His record shows he went AWOL on two separate occasions and received NJP; therefore, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.
4.  In addition, there is no record of a Red Cross message or any evidence showing he requested a hardship discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130018223





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ABCMR Record of Proceedings (cont)                                         AR20130018223



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