IN THE CASE OF:	  

		BOARD DATE:	  20 August 2014

		DOCKET NUMBER:  AR20130021905 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states:

* After he was released from the military, he regretted the mistakes he made
* He was a great Soldier during the time that he served
* The Army was always first in his life and he made a mistake which he solidly regrets
* The type of discharge he received at that time was just
* He now knows the military comes first
* If the Army wanted him to have a wife, they would have given him one
* He is sorry and his record speaks for itself

3.  The applicant provides:

* Self-authored letters, dated 4 December 2013 and 22 February 2014
* DD Forms 214 (Report of Separation from Active Duty), dated 24 March 1974 and 9 May 1979
* OSA Form 172 (Army Council of Review Boards Case Report and Directive), dated 9 February 1982
* Letter from his neighbor, dated 26 February 2014 


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 (RA) for 3 years on 24 June 1972. He completed training as a military policeman.  He was honorably discharged on 24 March 1974 for the purpose of immediate reenlistment.

3.  On 25 March 1974, the applicant reenlisted in the RA for 3 years.  He was honorably discharged on 26 December 1976 for the purpose of immediate reenlistment.

4.  The applicant reenlisted in the RA on 27 December 1976.

5.  On 14 December 1978, the applicant accepted nonjudicial punishment (NJP) for being derelict in the performance of his duties.

6.  Charges were preferred against him for the following offenses:

* failure to go to his appointed place of duty at the time prescribed on          8 January 1979 and 4 February 1979
* being absent without leave (AWOL) from 5 February to 8 March 1979 and from 22 to 23 March 1979

7.  The applicant was notified of the charges that were pending against him.  After consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge

* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

8.  The appropriate authority approved his request for discharge on 26 April 1979 and directed the issuance of a discharge under other than honorable conditions.  On 9 May 1979, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His DD Form 214 shows he completed 6 years, 10 months, and 15 days of total active service.  He received an under other than honorable conditions character of service.

9.  On 9 February 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  The applicant provides a self-authored letter listing the education he has received since being discharged and a letter from one of his neighbors stating what a good neighbor he has been.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service.

	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 applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The available evidence shows he accepted NJP for being derelict in the performance of his duties.

3.  He had charges pending against him for failure go to his appointed place of duty and for being AWOL.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  He was discharged in accordance with the applicable regulation and the type of discharge he received appropriately characterizes his overall record of service.

4.  Prior to his discharge he acknowledged that he understood the type of discharge he might receive.  His service during his last enlistment simply did not rise to the level of a general or an honorable discharge.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20130021905



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ABCMR Record of Proceedings (cont)                                         AR20130021905



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