IN THE CASE OF:	  

		BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000851 


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 undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states that after his discharge from the Army he has bettered himself and his way of life and is now a well respected individual and upstanding citizen of his community.

3.  The applicant provides a criminal records search, three third-party letters of support, and 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 was 22+ years of age when he enlisted in the Regular Army on 15 November 1973 for a period of 3 years and assignment to the 82nd Airborne Division.  He completed his basic training at Fort Dix, NJ, his advanced individual training as a light weapons infantryman at Fort Polk, LA, and his airborne training at Fort Benning, GA, before being transferred to Fort Bragg, NC, for his first and only assignment.

3.  His records show that nonjudicial punishment was imposed against him on 
15 October 1974 for being absent without leave (AWOL) from 2 – 9 October 1974, on 11 July 1975 for being AWOL from 3 – 10 July 1975, and on 
16 September 1975 for being AWOL from 1 August – 11 September 1975.

4.  The applicant again went AWOL on 14 October and remained absent in desertion until he was apprehended by civil authorities and was returned to military control on 9 December 1975.  Charges were preferred against the applicant on 11 December 1975 for his unauthorized absence of 56 days.

5.  On 15 December 1975 after consulting with defense counsel, the applicant submitted a request for 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.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement or explanation in his own behalf.

6.  The appropriate authority (a major general) approved his request for discharge on 11 March 1976 and directed the applicant be furnished an Undesirable Discharge Certificate. 

7.  Accordingly, he was discharged under other than honorable conditions on 
13 May 1976 under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 2 months, and 8 days of total active service with 111 days of lost time due to AWOL.

8.  The applicant applied to the Army Discharge Review Board (ADRB) on 
15 January 1980 requesting an upgrade of his discharge.  On 13 November 1981, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request.
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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions and supporting documents have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence and his undistinguished record of service.  His service simply did not rise to the level of under honorable conditions.

4.  Accordingly, 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 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)                                         AR20140000851





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ABCMR Record of Proceedings (cont)                                         AR20140000851



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