IN THE CASE OF: 

		BOARD DATE:	    17 June 2014

		DOCKET NUMBER:  AR20130020332 


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 that his character of service be changed from under other than honorable conditions (UOTHC) to an honorable discharge (HD).

2.  The applicant states he joined the service at the age of 18, got married, and had marital problems which led to him going absent without leave (AWOL).  He loved the Army and knows that what he did was wrong.  He only wishes he knew it then, and he is sorry.

3.  The applicant did not provide any support of his application.

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 14 January 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 36C (Lineman).  On 23 November 1976, he was honorably discharged for the purpose of immediate reenlistment.

3.  The applicant's record shows he was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 23 May 1979, for failing to go at the time prescribed to his appointed place of duty. 

4.  The applicant's record shows he was AWOL during the period 31 July 1979 to 28 August 1979, and dropped from the rolls (DFR) of his unit as a deserter on 29 August 1979.  The applicant was returned to military custody on 29 November 1979.

5.  The specific facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 21 January 1980 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) for the good of the service in lieu of trial by court-martial with a UOTHC characterization of service.  This form also shows he completed 2 years and 10 months of net active service this period with 139 days of time lost. 

6.  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.

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

	a.  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 UOTHC is normally considered appropriate.

	b.  paragraph 3-7a states an HD 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 states a general discharge (GD) 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded to an HD was carefully considered and it was determined there is insufficient evidence to support this request.

2.  During the period of service under review the applicant was punished for an act of indiscipline, AWOL, and his records show he was DFR'd.

3.  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.  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 during his second enlistment.

4.  Based upon his record of indiscipline that included 139 days of lost time, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is an insufficient evidentiary basis for granting the applicant an HD or a GD.

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)                                         AR20130020332





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ABCMR Record of Proceedings (cont)                                         AR20130020332



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