IN THE CASE OF: 

		BOARD DATE:	    28 August 2014

		DOCKET NUMBER:  AR20140001392 


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 he was told his discharge would be upgraded after 1 year.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and one page titled Inmate Detail.

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 20 July 1977.  He was assigned to the 2nd Battalion, 21st Infantry Regiment, Fort Stewart, GA, on 30 December 1977.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 3 March 1978, for being absent without leave (AWOL) from his assigned unit from 27 February to 2 March 1978
* 27 April 1978, for being AWOL from 18 to 24 April 1978

4.  His DA Form 2-1 (Personnel Qualification Record) shows he was also AWOL from 8 to 10 August 1978 and from 25 September to 1 October 1978.

5.  On 10 October 1978, he was reported as AWOL from his assigned unit and he was dropped from the rolls as a deserter.

6.  On 11 June 1979, he returned to military control at Fort Bragg, NC, and he was assigned to the Personnel Control Facility, Fort Bragg.

7.  On 11 June 1979, court-martial charges were preferred against him for one specification of being AWOL from 10 October 1978 to 11 June 1979.

8.  On 13 June 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 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.

9.  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.

10.  His immediate commander subsequently recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  His commander stated he interviewed the applicant and the applicant stated his AWOL was caused by problems with his knees that made it difficult to perform his job as well as he wanted.  He desired to get out of the Army with an under other than honorable conditions discharge to return to his job as a pipefitter. 

11.  On 27 June 1979, 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 17 July 1979, he was discharged accordingly.  

12.  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 1 year, 3 months, and 6 days of net active service with 262 days (8 months and 22 days) of lost time due to being AWOL.

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

14.  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.

15.  On 26 February 2009, the ABCMR denied his request for a medical discharge and found there was no basis for a medical discharge.

16.  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.

17.  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.

18.  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.  Notwithstanding his contention that he was told his discharge could be automatically upgraded after 1 year, the Army has never had a policy of automatically upgrading discharges.

4.  The evidence of record confirms he received NJP on two different occasions for being AWOL, he again went AWOL on three additional occasions, and he had almost 9 months of lost time at the time of his discharge.

5.  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)                                         AR20140001392





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ABCMR Record of Proceedings (cont)                                         AR20140001392



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