IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140005641 


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 correction of his record and DD Form 214 (Report of Separation from Active Duty) to show that he completed his full term of service and to upgrade his discharge to either a general, under honorable conditions or an honorable discharge.

2.  The applicant states, in effect that:

	a.  the Army failed to follow its own procedures and regulations and denied him of his rights, which resulted in his premature separation in violation of the Army's Separation Regulation and the U.S. Constitution. 

	b.  the military failed to provide him notice of his pending separation and his right to counsel.

	c.  he was under pressure to be with his pregnant wife during her childbirth and his family during the loss of his sister in childbirth, but felt dual obligations to his family and the Army.

	d.  he attempted to speak with his superiors and chaplain, but the advice offered did not diminish his need to be with his wife regardless of the consequences.

	e.  the simultaneous birth and death left his family in turmoil, and the last thing on his mind was returning to the Army even though he only intended to be home briefly.
	f.  when he returned he was told he was being administratively discharged which caused him to be depressed.

	g.  even though he explained why he was absent without leave (AWOL), he received no counseling, nor was he informed of what his legal rights were or the consequences of accepting the terms of his discharge, which he only recently discovered was not a general, under honorable conditions discharge.

	h.  in view of these issues, he believes he should have been allowed to serve out his enlistment honorably.  

	i.  until he received his military records he was unaware that he had violated the Uniform Code of Military Justice (UCMJ), Article 86 for being AWOL. 

	j.  his record is void any written waiver of his or written request for a discharge nor does it contains a DA Form 5138 (Separation Action Control Sheet), which he indicates he submitted one.

	k.  after his discharge and due to his military training, he worked in hospitals, mental facilities, and nursing homes.

	l.  he was divorced and retained custody of his son, until he went to prison where he received his general education diploma and took part in a college program. 

3.  The applicant provides:

* DD Form 214
* DD Form 458 (Charge Sheet)
* a 26-page self-authored statement
* 18 pages of his medical records
* five orders

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 November 1978 for a period of 3 years.

3.  His record contains and he submitted:

	a.  18 pages of his medical records, dated from 6 October 1978 to 19 July 1979, which show in pertinent part that he was fully qualified for separation.

	b.  five orders which show on:

		(1)  15 November 1978, Enlistment/Travel Orders Number 231-13, assigned him to active duty in the U.S. Army Reserve. 

		(2)  8 December 1978, Enlistment/Travel Order Number 248-14, ordered him to active duty with a report date to Fort Leonard Wood, of 9 December 1978.

		(3)  31 January 1979, Orders Number 31-241, assigned him to Fort Sam Houston, TX, with a report date of 17 February 1979. 

		(4)  18 July 1979, Orders Number 134-5, assigned him to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY, after he surrendered to military authorities on 13 June 1979.

		(5)  22 August 1979, Orders Number 164-69, reassigned him to the Separation Transfer Point, Fort Knox, KY with a scheduled date of discharge of 27 August 1979.

	c.  three DA Forms 4187 (Personnel Action) which show his duty status on:

		(1)  6 March 1979, changed from duty to AWOL; 

		(2)  3 April 1979, changed from AWOL to dropped from the rolls (DFR); and 

		(3)  14 July 1979, changed from DFR to attached. 

	d.  a DD Form 458, dated 17 July 1979, that shows a court-martial charge was preferred against him for one specification of being AWOL from 5 April to    14 July 1979.
4.  On 20 July 1979, the applicant 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, the applicant 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 was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He submitted a statement on his own behalf wherein he indicated that he was 18 years old, had a 10th grade education and chose to get out of the Army due to:

* his sister dying
* he and his family trying to stick together
* his parents getting old
* his not being able to adjust to Army life
* it (Army life) would have been alright if he had joined when he was twenty 

5.  The applicant's unit commander subsequently recommended approval with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 27 August 1979, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He also directed the applicant's reduction to the lowest enlisted grade and that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 27 August 1979, the applicant was discharged accordingly.  He completed 4 months and 11 days of total creditable active service with lost time during the period 5 March to 13 July 1979 (131 days).    

8.  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.

9.  The applicant's record is void of and he did not submit a DA Form 5138.

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

	a.  Chapter 10 of the version in effect at the time provided 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 Veterans Administration 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 given 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 available evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial after completing less than 5 months of his service.  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.  There is no evidence nor did he submit any evidence that shows he informed or sought help from his chain-of-command or chaplain due to pressure or depression brought on due to his wife's pregnancy and loss of his sister.

3.  His service records show he had one court-martial charge and 131 days of lost time due to AWOL.  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.

4.  His record shows he was 18 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  There is no evidence he was suffering from any mental condition at the time.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's an honorable or a general 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)                                         AR20140005641





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ABCMR Record of Proceedings (cont)                                         AR20140005641



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