IN THE CASE OF:	  

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130019656 


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:

	a.  He enlisted in the Army National Guard (ARNG) when he was 17 years of age and after about 1 year he decided to go active duty.  During his active duty service, he developed drug and alcohol addiction problems.  He does not think he was given the proper opportunity to participate in a rehabilitation program.

	b.  While he was being considered for a discharge at Fort Knox, KY, he thinks it was legal counsel who gave him and others the opportunity to take an administrative discharge vice staying on active duty and completing the remainder of his enlistment.  He was told after 6 months the character of his service would be upgraded and he would be eligible for veteran's benefits.

	c.  He had steady employment with one employer for over 10 years and only left due to a permanent disability that he now receives social security benefits for.  He raised his 18 year old daughter as a single parent and she has been employed since she was 16 years of age.  He asks his discharge be upgraded as a matter of equity taking into account the time he served honorably and the fact that he has taken responsibility for his family's welfare.


3.  The applicant provides his DD Form 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.  On 11 February 1977, the applicant enlisted in the Wisconsin ARNG (WIARNG).  On 5 September 1978, the WIARNG requested the applicant be ordered to active duty for 20 months and 12 days due to unsatisfactory participation as he repeatedly missed drills without being excused.  On 12 November 1978, he was discharged from the ARNG and ordered to active duty.

3.  On 13 November 1978, he entered active duty at 19 years of age.  On 21 November 1978, he was assigned to the 2nd Battalion, 34th Infantry, Fort Stewart, GA.

4.  On 26 February 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana.

5.  He was reported in an absent without leave (AWOL) status from his assigned unit from 2 to 6 August 1979.

6.  On 8 August 1979, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 2 to 6 August 1979.

7.  On 6 November 1979, he was reported AWOL from his assigned unit and on 19 November 1979, he was dropped from Army rolls (DFR) as a deserter.

8.  On 19 March 1980, he was apprehended by civilian authorities at Walworth County, WI.  On 25 March 1980, he was returned to military control and assigned to the Personnel Control Facility (PCF), Fort Knox, KY.

9.  On 3 April 1980, court-martial charges were preferred against him for one specification of being AWOL from 6 November 1979 to 25 March 1980.

10.  On 8 April 1980, he 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 or dishonorable discharge, the maximum permissible punishment authorized under the 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 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

11.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

12.  In a statement submitted in his own behalf, he stated he joined the ARNG when he was 17 years of age because it was only 4 months of initial training and monthly training after that.  When he returned home, he realized he made a mistake as he was just too young at the time.  He was requesting a chapter 10 discharge for the benefit of the Army because he could not Soldier the way the Army wanted him to and he could not perform in the Army.

13.  His immediate and senior commanders subsequently recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

14.  On 16 May 1980, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 10 June 1980, he was discharged accordingly.  


15.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 1 year, 2 months, and 6 days of net active service with 143 days (4 months and 13 days) of lost time due to being AWOL.

16.  His record is void of any evidence that shows he was identified by his command as having a drug and/or alcohol problem or that shows he requested assistance in dealing with a drug/alcohol problem. 

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

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  An under other than honorable conditions discharge was normally considered appropriate.

19.  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.

20.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of offenses 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. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  

3.  Notwithstanding his contention that he was told his discharge could be automatically upgraded after 6 months, the Army has never had a policy of automatically upgrading discharges.  

4.  The applicant contends that his discharge should be upgraded because he was young at the time of his service and was addicted to drugs and alcohol.  Records show that he was 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  In addition, although he received an NJP for possessing marijuana his record is void of any evidence that shows he was ever identified as having a drug/alcohol problem or that he requested assistance in dealing with drug/alcohol addiction.

5.  The evidence of record confirms he received NJP for possessing marijuana and for being AWOL.  He subsequently went AWOL a second time and had been AWOL for over 4 months prior to being returned to military control on 25 March 1980.  At the time of his discharge, he had almost 5 months of lost time due to being AWOL and he stated he was requesting a discharge because he "could not Soldier the way the Army wanted him to." 

6.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  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)                                         AR20130019656



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ABCMR Record of Proceedings (cont)                                         AR20130019656



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