IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140005914 


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 a discharge upgrade.

2.  The applicant states, in effect, he was going through family problems at the time of his discharge.  He is currently applying for health benefits through the Department of Veterans Affairs (VA) and for United States citizenship.

3.  The applicant provides no additional evidence.

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 23 January 1979.  He completed one station unit training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:

* on 9 June 1979, for being absent without authority (AWOL) from his unit
5 May 1979 through 27 May 1979
* on 6 February 1980, for being AWOL from his unit 27 December 1979 through 7 January 1980

4.  The applicant was convicted by a special court-martial, on 26 August
1980, of being AWOL from his unit 10 June 1980 through 9 July 1980.

5.  On 19 January 1982, court-martial charges were preferred against him for being AWOL during the period 15 December 1980 through 16 January 1982.

6.  On 20 January 1982, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, he indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  His immediate commander wrote, in his endorsement, the applicant's reason for his periods of AWOL were because his grandmother, who had been his guardian, was unemployed and needed his support.

9.  On 16 February 1982, the separation authority approved his request for discharge in lieu of court-martial and directed the applicant be given an under other than honorable conditions discharge.  He was discharged accordingly on 10 March 1982.

10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years and 18 days of active military service, of which 
398 days were lost time due to being AWOL.  Item 24 (Character of Service) of the DD Form 214 shows, "under other than honorable conditions," item 
25 (Separation Authority): "Chap 10, AR 635-200," and item 28 (Narrative Reason for Separation) states, "Administrative Discharge - Conduct Triable by Court-Martial".

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

	b.  Paragraph 3-7b states 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 request that his discharge be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 
635-200.  Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on the applicant’s record of indiscipline his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory.

4. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veteran's benefits or United States 
citizenship.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran’s benefits or United States citizenship is not within the purview of the ABCMR.
 
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)                                         AR20140005914





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ABCMR Record of Proceedings (cont)                                         AR20140005914



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