IN THE CASE OF:	  

		BOARD DATE:	 2 July 2014

		DOCKET NUMBER:  AR20130019047 


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 characterization of service be upgraded to under honorable conditions (general).

2.  The applicant states he was very young when his first child was born.  He left the military and went home to be with his baby.

3.  The applicant provides four character/reference letters, dated 14 October 2013.

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 17 July 1974 and he held military occupational specialty 13B (Field Artillery Crewman).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) from:

* 18 February 1976 to 1 March 1976 (13 days)
* 4 March 1976 to 8 March 1976 (5 days)
* 10 March 1976 to 8 June 1976 (91 days)

4.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 (Report of Separation from Active Duty) showing, on  27 July 1976, he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations- Enlisted Personnel) and received an undesirable discharge with a character of service of under other than honorable conditions.  He completed 1 year, 8 months, and 24 days of creditable active military service with 107 days of time lost.

5.  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.

6.  He provided several character reference letters showing he is active in his church and community and is thought of as a responsible and honorable person. Additionally, his brother and a friend indicated that he left the military because his fiancée (mother of his child) and his baby were supposed to join him at his permanent duty station so they could become a family.  His fiancée's mother convinced her that leaving was a bad idea.  After trying to rectify the situation he contacted the military and was told he would have to go AWOL for a period of 121 days to get discharged and that he would be eligible for an upgrade of his characterization of service after 10 years.

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

	a.  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 (VA) benefits.

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

2.  His record shows he was AWOL for 107 days; 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.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

4.  There is no provision within Army regulations for upgrading a Soldier's characterization of service based on the passage of time, for example, the "10 year" rule mentioned.  Every case is individually decided based upon merits of the case when an applicant requests a correction to his or her military records.

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)                                         AR20130019047





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ABCMR Record of Proceedings (cont)                                         AR20130019047



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