IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140000863 


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 his under other than honorable conditions discharge be upgraded to honorable.  

2.  The applicant states:

	a.  While on active duty he injured his right knee.  He was receiving treatment for his knee by the military but it got progressively worse.  While on an approved weekend pass he was seen by a private doctor.  It was determined he had a fracture and surgery was required.  He was in rehabilitation for several months.  He was wrong for not staying in touch with his unit but he was scared of repercussions due to his absence.  

	b.  He was young, ill-advised, and he made a bad decision.  However, he voluntarily returned to the military as it was never his intention to desert.  He was immediately thrown in the brig and subsequently discharged without legal counsel.  No one even looked at his knee or gave him consideration for his situation.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a medical report, and two statements of support.

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 13 December 1978 when he was 19 years and 11 months of age.  On 6 April 1979, he was assigned to the 1st Battalion, 12th Cavalry Regiment, Fort Hood, TX.

3.  On 19 June 1979, he was reported as absent without leave (AWOL) from his assigned unit and on 18 July 1979 he was dropped from the rolls as a deserter.  

4.  The applicant provides a medical report, dated 9 July 1979, wherein it shows he underwent an operation on that date at the South Community Hospital (city and state unknown) for a "fracture anterior tibial spine, right knee."  This report does not state how the injury was incurred.

5.  His record contains a DA Form 4187 (Personnel Action) wherein it shows that on 9 December 1979, he was apprehended by civilian authorities and returned to military control at Fort Sill, OK.  He was assigned to the U.S. Army Personnel Control Facility, Fort Sill.

6.  Court-martial charges were subsequently preferred against him for one specification of being AWOL from 19 June to 9 December 1979.

7.  On 17 December 1979, he underwent a Mental Status Evaluation and the examining physician psychiatrically cleared him for any administrative action deemed appropriate by his commander.

8.  On 17 December 1979, he signed a Medical Examination for Separation Statement of Option, wherein he checked the appropriate box to show he did not desire a separation medical examination.

9.  On 18 December 1979, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge 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.

10.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, 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.

11.  On 18 December 1979, he was voluntarily placed on excess leave pending his discharge under Army Regulation 635-200, chapter 10.

12.  On 4 January 1980, his immediate commander recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  His commander stated the applicant had 6 months and 6 days of active service and was charged with 173 days of AWOL time.  He had gone AWOL for personal reasons, he was unable to adjust to military life, and rehabilitation efforts would be futile.  

13.  On 11 January 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 18 January 1980, he was discharged accordingly.  

14.  The DD Form 214 he was issued shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 7 months and 15 days of net active service with 32 days excess leave and 173 days (5 months and 23 days) of lost time due to being AWOL.

15.  His available record is void of any evidence that shows he was ever treated for or diagnosed with a knee injury while serving on active duty.

16.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  The applicant provides a statement of support, dated 22 December 2013, wherein a member of his church stated the applicant was an outstanding citizen and had been dealing with knee problems.  He provides a second statement of support, dated 29 December 2013, wherein a friend stated he had known the applicant for over 3 years and knew personally that he was having problems with his knee.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  An under other than honorable conditions discharge was normally considered appropriate.

19.  Army Regulation 635-200, 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.

20.  Army Regulation 635-200, 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 evidence of record confirms 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. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  The applicant contends his discharge should be upgraded because he was young and ill-advised at the time of his service, he did not have legal counsel, and consideration was not given to his knee injury.  Records show that he was 20 years and 6 months years of age at the time he went AWOL.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  In addition, the evidence of record confirms he sought legal counsel prior to submitting his request for a discharge in lieu of trial by court-martial and he declined a separation physical.  There is no evidence in his available record that shows he was ever diagnosed with or treated for a knee injury while servicing on active duty.  

5.  The evidence of record confirms after just 6 months of active service he went AWOL and had almost 6 months of lost time at the time of his discharge.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140000863



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ABCMR Record of Proceedings (cont)                                         AR20140000863



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