BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140001642 


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 discharge under other than honorable conditions to an honorable or a general discharge.

2.  The applicant states:

* He was a good Soldier
* He left the military trying to save his marriage and to keep his children
* He knew that what he was doing was not right but he believed that it was the only way
* He really wanted to stay in the Army when he was discharged
* He was told that his discharge would be automatically upgraded after 5 years

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty), dated 5 April 1977
* Self-authored statement (undated)
* Supporting letters from two of his co-workers and a letter from the office manager of Holy Child Catholic Parish

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 21 August 1975.  He completed training as an armor reconnaissance specialist.

3.  On 22 March 1977, the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 21 December 1976 to 17 March 1977.  He acknowledged receipt of the notification and after consulting with counsel he submitted a request for 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.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

4.  The appropriate authority approved his request for discharge on 29 March 1977 and directed the issuance of a discharge under other than honorable conditions.  On 5 April 1977, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His DD Form 214 shows he completed 1 year, 4 months, and 18 days of net active service this period.  He received an under other than honorable conditions character of service.

5.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.


6.  The applicant provides a self-authored letter explaining his reasons for going AWOL.  He states:

* His wife was having second thoughts about their marriage because of his dedication to the military
* His wife went home to live with her family
* He received a phone call that his wife who was pregnant gave birth with a strange man at her side 
* When he returned home he found out his wife was having an affair
* His wife told him if he left the Army their marriage could be saved
* He turned himself in and he was sent to Fort Dix, New Jersey, where he received a less than honorable discharge

7.  In the self-authored letter he provides he states he later divorced, remarried, and had two children.  In the letter he goes on to speak about his community activities.  He also provides supporting letters from two of his co-workers and a letter from the office manager of Holy Child Catholic Parish all attesting to his good post-service conduct.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service.

	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 contentions have been noted.  His supporting evidence has been considered.

2.  His records show he had charges pending against him for being AWOL.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  He was discharged in accordance with the applicable regulation and the type of discharge he received appropriately characterizes his overall record of service.

3.  There is no evidence in the available record showing that he was told his discharge would be automatically upgraded after 5 years.  Prior to his discharge he acknowledged that he understood the type of discharge he might receive.  His service simply did not rise to the level of a general or an honorable discharge.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20140001642



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ABCMR Record of Proceedings (cont)                                         AR20140001642



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