IN THE CASE OF:  	  

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20140000855 


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.

2.  The applicant states that he got his girlfriend pregnant before he left for his overseas assignment in Germany.  He returned to the United States and married her on 3 August 1974; she was 14 years old.  She was having complications with her pregnancy and implored him to remain with her.  He was young and he struggled with alcohol and drug problems, so he decided to go absent without leave (AWOL).  His daughter was born on 6 February 1975 and he was afraid that his mother-in-law was going to have him put in jail if he returned to Germany.  He adds that he is still married and concludes that he had issues while in the Army, but he served honorably.

3.  The applicant provides copies of his marriage certificate, daughter's birth certificate, and 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.  On 19 November 1973, the applicant enlisted in the Regular Army for a period of 3 years.  He was 18 years of age when he enlisted.  He completed his initial entry training and was awarded military occupational specialty (MOS) 36C (Telephone Installation and Lineman).

3.  He accepted nonjudicial punishment (NJP) for failing to report to his unit's morning formation on 28 May 1974.

4.  On 13 June 1974, he was assigned to Company B, 34th Signal Battalion, in the Federal Republic of Germany.

5.  At some point between 13 June 1974 and 16 August 1974, he returned to the continental United States (CONUS) on ordinary leave.  When his leave period expired, he did not return to his unit in Germany.  

6.  On 17 August 1974, he was attached to Company A, Headquarters Command, U.S. Army Signal Training Center, Fort Gordon, GA, pending a decision on his request for compassionate reassignment based on his wife's medical problems.  

7.  On 16 September 1974, he was notified that his request was not favorably considered, no further attachment was authorized, and he was directed to return to his unit in Germany within 7 days.

8.  On or about 28 September 1974, he was reported by his unit as AWOL.

9.  On 18 December 1974, court-martial charges were preferred against him for being AWOL from on or about 28 September 1974 to on or about 13 December 1974.

10.  On 18 December 1974, he consulted with legal counsel.  He was informed of the charges against him for violations of the Uniform Code of Military Justice 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 against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct discharge.  His 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 a undesirable discharge (under other than honorable conditions).

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

	d.  He and his counsel signed the document.

   e.  He submitted a statement in his own behalf, wherein he stated, "I want out of the service because I do not like it and do not wish to continue my time.  I also have family problems at home."

11.  His immediate and intermediate commanders recommended approval of his request and recommended the issuance of an Undesirable Discharge Certificate.

12.  The separation authority approved his request for discharge and directed he receive an Undesirable Discharge Certificate.

13.  On 10 February 1975, he was discharged from the Army 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.  The DD Form 214 he was issued shows:

	a.  He completed 1 year and 8 days of net active service during this period.

	b.  Item 21 (Time Lost) shows he had 76 days of time lost.

	c.  He was issued an Undesirable Discharge Certificate and an under other than honorable conditions characterization of service.

14.  A review of his military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.
15.  In support of his application he provides the following documents:

   a.  State of Alabama, DeKalb County, Marriage Certificate, that shows the applicant (last name C----) and Beverly A. B---- were married on 3 August 1974.

   b.  State of Tennessee, Department of Health, Certification of Birth, that shows Paula E. C---- was born on 6 February 1975.

16.  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 applicant contends his under other than honorable conditions discharge should be upgraded because he was young, afraid, and struggling with alcohol and drug problems when he went AWOL and refused to return to Germany following complications during his wife's pregnancy.

2.  Considering he successfully completed training and was awarded MOS 36C, his contention that he was immature is not supported by the evidence of record.  Additionally, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  There is no evidence of record, other than his contention in his application to this Board, that he was struggling with alcohol and drug problems during the period of service under review.  In any event, this would not serve as an excuse for his period of AWOL service.

4.  The evidence of record shows he requested a compassionate reassignment based on his wife's medical problems.  On 16 September 1974, he was notified that his request was not favorably considered and he was directed to return to his unit in Germany within 7 days.  Thus, it is reasonable to conclude that his wife's medical problems were not of such a serious nature that required his continued presence with her.

5.  Records show he was AWOL for 76 days, from on or about 28 September to on or about 13 December 1974, at the time he returned to military control.

6.  His 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.

7.  During the period of service under review, he received NJP, he had 76 days of lost time, and he failed to complete his 3-year enlistment obligation.  Thus, his 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 general discharge.

8.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

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)                                         AR20140000855



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ABCMR Record of Proceedings (cont)                                         AR20140000855



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