IN THE CASE OF:	 

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130020034


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 under other than honorable conditions discharge.

2.  The applicant states his discharge resulted from his absence to take care of a sick family member.

3.  The applicant provided a copy of his DD Form 214 (Report of Separation 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 29 November 1977, the applicant enlisted in the Regular Army.  He completed his initial entry training, and was awarded military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 10 January 1978, prior to the completion of his initial entry training, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 4-8 January 1978.

4.  On or about 3 April 1978, he was assigned to Company A, 65th Engineer Battalion, Schofield Barracks, HI.  

5.  On 23 November 1978, his duty status was changed from present for duty to emergency leave.

6.  On 5 January 1979, his duty status was changed from emergency leave to AWOL.

7.  On 2 February 1979, his duty status was changed from AWOL to dropped from the rolls.

8.  On 20 April 1979, he was returned to military control at Fort Dix, NJ.

9.  Orders 116-78, issued by U.S. Army Training Center and Fort Dix, Fort Dix, NJ, dated 26 April 1979, assigned him to Company A, U.S. Army Personnel Control Facility (PCF), Fort Dix, NJ, effective 20 April 1979. 

10.  On 26 April 1979, court-martial charges were preferred against him for being AWOL, from on or about 5 January through 20 April 1979.

11.  On 26 April 1979, he underwent an interview at the PCF, Fort Dix, NJ.  During this interview, as documented on the PCF Interview Sheet, the interview recorded the following:

SM (servicemember) thought the Army was going to be a lot different than what it turned out to be.  SM claims to have seen his chain of command while in basic [training] and requested a discharge because he didn't like the service.  SM was convinced to stick it out and give the Army a chance.  SM PCSd (permanent change of station) to Hawaii and returned on emergency leave due to the death of his grandmother.  While on emergency leave, due to his mother living on welfare and the death of his grandmother, SM decided to stay at home.  SM claims he decided he was never going to return.  He says he would not have returned except for the fact he was apprehended.  SM also states his mother is having trouble with his brothers and sister and needs him to help out.

12.  On 27 April 1979, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

13.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement on his own behalf.

14.  On 4 June 1979, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

15.  On 19 June 1979, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and he was issued an under other than honorable conditions discharge.  His DD Form 214 further shows he had 108 days of lost time.  

16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions is normally considered appropriate.

   a. 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 clearly be inappropriate.

   b. 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 request for discharge upgrade was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant contends his discharge resulted from his absence to take care of a sick family member.  The evidence of record does not support this contention.  In fact, in his interview with PCF officials immediately following his return to military control, he stated he had been unhappy with the Army since basic training, and he had no intent to return following his absence to attend his grandmother's funeral.  In that interview, he cited his mother's poor financial circumstance at the time, and not the illness of a family member, as a contributing factor in his decision to delay his return to duty.  

3.  Regardless, after 108 days of lost time due to his AWOL status, he was returned to military control to face court-martial charges.  Instead of facing a trial by court-martial, he elected to request discharge in lieu of trial by court-martial.  

4.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation 635-200, are voluntary requests for discharge in lieu of trial by court-martial.

5.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

6.  Based on his extended period of lost time, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20130020034



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