IN THE CASE OF:	  

		BOARD DATE:	  3 September 2014

		DOCKET NUMBER:  AR20140000582 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states he was immature and made a poor decision that resulted in 65 days of time lost during his military service.  His commander at Fort Polk, LA threatened to have him imprisoned and then dishonorably discharged.  His only other option was to request a discharge and accept an under other than honorable conditions discharge.

3.  The applicant provides 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.  The applicant enlisted in the Regular Army on 14 May 1976 for a period of 3 years.  At the time he was 18 years of age.  He was awarded military occupational specialty (MOS) 91B (Medical Specialist).

3.  He accepted nonjudicial punishment (NJP) on the following four occasions-

* on 14 August 1976for , assaulting a Soldier and wrongfully using provoking language
* on 5 November 1976, for failing to report to his designated place of duty
* on 22 October 1978, for failing to report to his designated place of duty
* on 27 November 1978, for failing to follow a lawful general order (on two occasions) and failing to report to his designated place of duty

4.  On 21 February 1979, court-martial charges were preferred against the applicant for being absent without leave (AWOL -

* from 4 December 1978 to 3 January 1979
* from 17 January 1979 to 21 February 1979

5.  On an unspecified date, the applicant consulted with legal counsel.  He was informed of the charges against him for violations of the Uniform Code of Military Justice (UCMJ) and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.
 
	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge(s) against him or of (a) lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be discharged under conditions other than honorable, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were given an Under Other Than Honorable Discharge Certificate.

	c.  He was also advised that he could submit any statements he desired in his own behalf.  He elected to submit a statement in his own behalf.

	d.  The applicant and his counsel placed their signatures on the document.

   e.  The applicant submitted a statement in his own behalf.  He stated that he wanted to be discharged from the Army because of serious family problems between him and his ex-wife.
   
    	(1)  He acknowledged he was guilty of both periods of AWOL for which he was charged.  He stated that during the first period of AWOL he went to California to try to get back together with his wife, he could not locate her, and he voluntarily returned to Fort Polk.  During the second period of AWOL he went to California, located his wife, but was unable to get back together with her.  He added that she received a divorce from him during the second period of AWOL.

    	(2)  He acknowledged his job performance "has been down" while he was at Fort Polk and that he was wrong in going AWOL.  However, he requested the separation authority "take into consideration [his] two and a half years of good service in deciding whether [he] should receive a general discharge under honorable conditions rather than a discharge under other than honorable conditions."

6.  The separation authority approved the applicant's request for discharge and directed characterization of his service as under other than honorable conditions.

7.  The applicant's DD Form 214 shows he was discharged, on 6 April 1979, under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service- in lieu of trial by court-martial, with an under other than honorable conditions characterization of service.

	a.  He had completed 2 years, 8 months, and 22 days of net active service during this period.

	b.  Item 21 (Time Lost) shows he had 65 days of time lost.

8.  On 23 March 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  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.  Chapter 3, 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.  Chapter 3, 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 contends that his under other than honorable conditions discharge should be upgraded because he was immature, he went AWOL due to family problems, and he was threatened with imprisonment by his commander.

2.  Considering the applicant successfully completed training and was awarded MOS 91B, his contention that he was immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's contention that the reason he went AWOL was because of family problems is not in dispute.  However, there is no evidence of record that shows he attempted to resolve his personal/family problems through the use of leave or any other means available to him through installation support services and/or his chain of command.

4.  Records show the charges against the applicant for violations of the UCMJ, for which he was pending trial by court-martial, authorized the imposition of a bad conduct discharge or dishonorable discharge.  As such, the applicant was subject to pre-trial confinement.  Thus, in the absence of the applicant's request for discharge in lieu of trial by court-martial, the possibility of his imprisonment existed and the probability was likely.  The evidence of record shows the applicant voluntarily requested and was not subjected to coercion with respect to his request for discharge (emphasis added).  Thus, his contention that he was threatened by his commander is not supported by the evidence of record.
5.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

6.  During the period of service under review, the applicant received NJP on at least four occasions, he had 65 days of time lost, and he failed to complete his
3-year enlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either 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)                                         AR20140000582



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ABCMR Record of Proceedings (cont)                                         AR20140000582



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