BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20140002316 


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 is trying, but unable to get housing and medical benefits due to his under other than honorable conditions discharge
* he can't remember why he received the discharge, but presumes it was because he went absent without leave (AWOL)
* he packed up his belongings one day, went home for a visit, and never returned
* when he returned, after he was arrested, the Army came and got him
* he was a good Soldier before he went AWOL, having served for about 
2 years
* he has major medical problems to include heart problems, a pacemaker, double bypass surgery, heart surgery, and kidney problems

3.  The applicant provides no additional documents.

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 15 May 1979.

3.  Special Court-Martial (SPCM) Order Number 3, issued by Headquarters, 160th Signal Brigade on 17 January 1980, shows that on 26 December 1979, the applicant pled guilty and was found guilty of stealing $160.00 on 24 October 1979.  

4.  His record contains his disciplinary history which shows he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions:

* on 20 February 1980, for dereliction in the performance of his duty on       7 February 1980
* on 13 June 1980, for failing to go to his appointed place of duty on 16 May 1980
* on 5 August 1980, for failing to go to his appointed place of duty on         14 July 1980 and for disobeying a lawful order on 22 July 1980

5.  His record contains a DD Form 458 (Charge Sheet) that shows a court-martial charge was preferred against him on 7 December 1987, for two specifications of violating Article 86 of the UCMJ.  Specifically, he was charged with being AWOL from on or about 2 December 1980 through on or about 3 February 1981, and from on or about 20 February 1981 through on or about 25 November 1987.

6.  On 7 December 1987, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written 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, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant did not submit a statement on his own behalf.

7.  The applicant's chain of command recommended approval of his request, with the issuance of an under other than honorable conditions discharge certificate.

8.  On 30 December 1987, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,    chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and be issued an under other than honorable conditions discharge.

9.  On 2 February 1988, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 
1 year, 8 months, and 19 days of creditable active service with 2,555 days of time lost.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

	a.  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.

	b.  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 shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  His record shows he had one SPCM conviction, three instances of NJP, and 2,555 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

3.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140002316





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140002316



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1