BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130018900 


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 never got court-martialed and he was very young
* his sergeant took him under his wings and let him live in his house
* his sergeant bought him a plane ticket and made him believe he could leave and not come back
* he has an honorable discharge from the Army National Guard

3.  The applicant provides copies of two DD Forms 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.  A DD Form 214 provided by the applicant shows he entered active duty for training on 31 October 1979 as a member of the Army National Guard.  His enlistment records for this period of service are not available.

3.  On 21 December 1979, he was honorably released from active duty under the Trainee Discharge Program and transferred to the Army National Guard of Massachusetts.

4.  On 17 July 1980, a week prior to his 20th birthday, he enlisted in the Pennsylvania Army National Guard for a 6-year period.  On 21 September 1980, he was ordered to active duty.

5.  A DA Form 4187 (Personnel Action), dated 6 January 1981, shows his status changed from leave to absent without leave (AWOL) on 4 January 1981.

6.  On 3 February 1981, he was dropped from the rolls.

7.  On 26 June 1981, his status changed from dropped from the rolls to present for duty.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 30 June 1981, shows the applicant was mentally responsible and had the mental capacity to understand and participate in discharge proceedings.

9.  On 30 June 1981, charges were preferred against the applicant for being AWOL from on or about 4 January 1981 until on or about 26 June 1981.

10.  On 2 July 1981, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant admitted guilt to being AWOL and acknowledged:

* he understood that if the discharge request was approved he could be discharged under other than honorable conditions 
* he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life

11.  On 13 July 1981, the separation authority approved his request for discharge, directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate, and directed his reduction to private/E-1.

12.  On 19 August 1981, the applicant was discharged as directed.  His DD Form 214 shows he was credited with 5 months and 7 days of active military service.  He had 173 days of lost time for the period 4 January 1981 through 25 June 1981.

13.  On 7 March 1983, the Army Discharge Review Board notified the applicant of its decision to deny his request for a change in the type and nature of his discharge.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

   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. 

	c.  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, an under other than honorable conditions discharge is normally considered appropriate.

	d.  Paragraph 5-33, in effect at the time, provided the authority to separate Soldiers prior to the completion of their training for one of the following reasons:  could/would not adapt; could not meet training standards; did not meet moral, mental, or physical standards; or character and behavior disorder.  An honorable discharge was authorized for members separating under this provision and the narrative reason for separation for these members was “Trainee Discharge Program Marginal or nonproductive.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered.

2.  Records show the applicant was 20 years of age at the time of his indiscipline.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  His argument of having prior honorable discharge as a basis for an upgrade is without merit.  His prior honorable discharge was by default based on his inability to adapt; meet training standards; or meet moral, mental, or physical standards; or having a character and behavior disorder.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

5.  He elected to be AWOL and when court-martial charges were preferred against him, he voluntarily chose to be discharged instead of facing the charges.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to 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)                                         AR20130018900



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ABCMR Record of Proceedings (cont)                                         AR20130018900



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