IN THE CASE OF:	  

		BOARD DATE:	  1 October 2014

		DOCKET NUMBER:  AR20140002475 


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, in effect, an upgrade of his discharge.

2.  The applicant states, in effect, at the time of his discharge in 1980 he was in a new marriage, had just returned from Panama, and he was talking about a divorce.  He was barely 21 years of age and very immature.  He didn't know the right road to take.  Eventually, he was divorced anyway.  He loved the Army and his military occupational specialty (MOS) 95B (military policeman).  Many, many times over the past 34 years he has wished he had spent 30 years in the Army.  He is now 55 years of age and desires to have his discharge upgraded so he can retire or die when the time comes with all of his affairs in order.  The Board's consideration and compassion in this matter would be greatly appreciated.

3.  The applicant provides a copy of a Department of Veterans Affairs Form     21-4138 (Statement in Support of Claim).

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 23 February 1978 and was discharged from the DEP on 27 March 1978.  He enlisted in the Regular Army (RA) on 28 March 1978.  At the time of his enlistment, he was 19 years, 2 months, and 28 days of age.  He served in MOS 95B.  

3.  On 12 June 1978, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from 5 to 6 June 1978.

4.  He was promoted to pay grade E-4 on 2 February 1980.  

5.  On 17 April 1980, he again accepted NJP under Article 15, UCMJ, for failing to attend Nuclear, Biological, and Chemical school as it was his duty to do so.

6.  He served in Panama from 27 November 1979 through until he went absent without leave (AWOL) in May 1980.

7.  A DA Form 3822-R (Report of Mental Status Evaluation) shows he underwent a mental status evaluation on 16 July 1980 for the purpose of his discharge.  He was determined to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

8.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  Orders Number 238-12, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, NC, dated 12 December 1980, reducing him from pay grade E-3 to pay grade E-1 and assigning him to the U.S. Army Separation Transfer Point for processing with a reporting date of 16 December 1980.

   b.  A DD Form 458 (Charge Sheet), dated 23 December 1980, completed by the Commander, Headquarters Company, Law Enforcement Activity, Fort Clayton, Panama.  The applicant was charged with one specification of being AWOL from 11 May 1980 and remaining so absent.

   c.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged in pay grade E-1 on 16 December 1980, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10.  He was credited with completing 2 years, 6 months, and 21 days of net active service with lost time from 5 to 6 June 1978 and from 11 May through 7 July 1980.

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

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances surrounding his discharge; however, it appears upon his return from being AWOL he voluntarily, willingly, and in writing requested discharge from the Army.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  

2.  His contention that he was young and immature at the time was carefully considered.  However, he was over 19 years of age at the time of his enlistment in the RA and 21 years of age when he went AWOL.  There is no evidence he was any less mature than other Soldiers of the same age or of a younger age who served successfully and completed their terms of service.  

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct during his period of service diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him 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)                                         AR20140002475



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ABCMR Record of Proceedings (cont)                                         AR20140002475



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