IN THE CASE OF:	  

		BOARD DATE:	  5 August 2014

		DOCKET NUMBER:  AR20130021764 


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 discharge under other than honorable conditions.

2.  The applicant states he was trying to get reassigned to the United States due to his family situation.  He was assigned to the 7th Combined Army Training Center (CATC), Germany, and he needed to be back home with his wife and two young children.  He tried to get reassigned to Fort Devens, MA, and Fort Dix, NJ, both of which had openings in his military specialty at that time.  He turned himself in after 30 days of absence without leave (AWOL) to get help for his reassignment and he was discharged instead.  After being out of the Army for 2 years, he enlisted in the Vermont Army National Guard (ARNG) in August 1984 and he retired in September 1994.  He would now like to have a veterans' enhanced driver's license and cannot do so due to his discharge status.

3.  The applicant provides:

* 2010 retirement orders
* 1994 ARNG Honorable Discharge Certificate
* National Guard Bureau Form 22 (Report of Separation and Record of Service)

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.  Having prior enlisted service in the Regular Army that included overseas tours in Germany, Vietnam, and Korea, the applicant reenlisted on 5 July 1979.  He held military occupational specialty 63B (Light Vehicle Mechanic).  He was assigned to the Support Company, CATC, and he held the rank/grade of staff sergeant/E-6 at the time.

3.  On 17 January 1982, he was reported as AWOL and he was dropped from the rolls as a deserter on 15 February 1982.  He surrendered to military authorities at Westover Air Force Base, MA, on 3 March 1982.  He was placed in pretrial confinement at Fort Dix, NJ, pending court-martial charges.

4.  The complete facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his records contain the following documents:

	a.  A DD Form 458 (Charge Sheet) initiated by his chain of command in or about February 1982 shows he was being charged with one specification of AWOL beginning on or about 17 January 1982.

	b.  U.S. Army Training Center and Fort Dix, Fort Dix, NJ, Orders 088-77, dated 29 March 1982, reduced him in rank to private/E-1 effective 19 March 1982 and ordered his discharge effective 8 April 1982.

	c.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 April 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and issued an Under Other Than Honorable Conditions Discharge Certificate.  He was assigned a separation program designator (SPD) code of JFS (administrative discharge conduct triable by court-martial).  He completed 2 years, 7 months, and 27 days of net active service during this period and 10 years, 5 months, and 6 days of prior active service.  He had lost time from 18 January to 2 March 1982.

5.  His DD Form 214 for the period ending 8 April 1982 also shows he was awarded or authorized the:

* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Army Good Conduct Medal (3rd Award)
* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Bronze Star Medal
* Overseas Service Ribbon
* Army Service Ribbon
* Driver and Mechanic Badge

6.  After his discharge from the Regular Army, he enlisted in the ARNG on 26 July 1984 and served through multiple extensions in a variety of assignments. 
He was transferred to the Retired Reserve (non-Regular retirement) on 25 July 1994 and was placed on the Retired List on his 60th birthday in September 2010.

7.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

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

	a.  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.

	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 available records indicate the applicant was charged with the commission of an offense 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.  He would have voluntarily requested discharge from the Army in lieu of trial by court-martial.

2.  Although his records are void of the specific facts and circumstances that led to his discharge, it contains a DD Form 214 that shows he was discharged on 8 April 1982 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of active duty service.

3.  His prior service and his multiple overseas tours, as well as his multiple awards and decorations, are noted.  Likewise, his subsequent enlistment in and retirement from the ARNG are also noted.  However, they do not overshadow the fact that he was a deserter.  There would have been many other legitimate avenues to address his family issues at the time had he chosen them.

4.  Based on his record of indiscipline, his active duty service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his active duty service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20130021764



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ABCMR Record of Proceedings (cont)                                         AR20130021764



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