IN THE CASE OF 

		BOARD DATE:	    24 July 2014

		DOCKET NUMBER:  AR20130020913 


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 upgrade of his under other than honorable conditions characterization of service.

2.  The applicant states he came from a broken home where he received continuous verbal abuse.  Mentally, he was not healthy enough to deal with his drill sergeants and other superiors calling him the same names he had grown up hearing.

3.  The applicant provides a request for discharge for the good of the service dated 31 January 1979, an Absent Without Leave (AWOL) Deserter Verification Sheet, and a 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.  The applicant enlisted in the Regular Army on 24 July 1978 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  His record contains a DD Form 458 (Charge Sheet), dated 30 January 1979, showing court-martial charges were preferred against him for being AWOL from on or about 20 November 1978 to on or about 28 January 1979.

4.  His record contains a personnel control facility interview sheet, dated 
31 January 1979 showing he stated he was trying to support his family and had been sending them money from the time he joined the Army.  He went home on leave and spent all his money on his family.  When he realized he did not have enough money to return to his place of duty he contacted the Red Cross prior to going AWOL.  He did not surrender himself to military authorities sooner because he did not have the money for travel.  He was finally able to get a ride to Fort Hamilton, NY when his uncle drove up to New York for a funeral.

5.  On 31 January 1979, he voluntarily requested discharge for the good of the Service 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.  He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad-conduct or dishonorable discharge.  He stated he was making this request for his own free will and had not been subjected to any coercion whatsoever by any person.  He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad-conduct or dishonorable discharge.

	a.  He acknowledged that prior to completing his request for discharge he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses which he was charged, any relevant lesser included offenses, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; possible defenses which appear to be available at this time; the maximum permissible punishment if found guilty and of the legal effect, and the significance of his suspended discharge.

	b.  He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He also acknowledged he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his  rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

6.  On 12 March 1979, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge.  Accordingly, he was discharged on 27 March 1979.

7.  His DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service and received an under other than honorable conditions discharge.  He completed 5 months and 26 days of creditable active military service with 69 days of time lost.

8.  On 30 December 1980, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence determined he was properly discharged and denied his request for an upgrade.

9.  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 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 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.

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  His record contains a history of AWOL.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.

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)                                         AR20130020913





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ABCMR Record of Proceedings (cont)                                         AR20130020913



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