IN THE CASE OF:  	  

		BOARD DATE:  21 October 2014	  

		DOCKET NUMBER:  AR20140006167 


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 change to his character of discharge.

2.  The applicant states essentially that he was absent without leave (AWOL) due to a mental condition which resulted in hospitalization and that his mental state prevented him from comprehending the documents he signed at the time of discharge.

3.  The applicant provides no additional documentation.

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 1 November 1968.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and secondary MOS 63B (Wheeled Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  He reenlisted once on 16 March 1969 and again on 28 August 1970.  He served in Vietnam from on or about 13 March 1969 to on or about 2 June 1970 and in Panama from on or about 18 July 1972 to on or about 12 November 1975.

3.  He was AWOL during the following periods:

* 6 January 1969 through 7 January 1969
* 15 October 1970 through 5 January 1971
* 28 March 1971 through 7 April 1971
* 22 November 1975 through 5 October 1976

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 January 1969, for failing to go to his prescribed place of duty and for being absent without leave (AWOL) from 
6 April 1969 through 7 January 1969.

5.  He received NJP under the provisions of Article 15 of the UCMJ on 
15 March 1970, for sleeping at his post while a bunker guard on 12 March 1970. 

6.  He received NJP under the provisions of Article 15 of the UCMJ on 
25 April 1975, for failing to go to his prescribed place of duty on 15 April 1975. 

7.  He was found guilty before a special court-martial under the provisions of Article 86 of the UCMJ on 2 March 1971, for failing to go to his prescribed place of duty and for being absent without leave (AWOL) from 15 October 1970 through 5 January 1971.

8.  Charges were preferred against him, on 12 January 1976, for being AWOL for the period 22 November 1975 through 6 January 1976.

9.  On 12 January 1976, he consulted with counsel and 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 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.


10.  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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  On 23 January 1976, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of an under other than honorable conditions discharge.

12.  An FH Form 2242 (Administrative Discharge Sheet), completed and signed by the applicant at the time of discharge, essentially states in the narrative section he feared a relapse of his mental problems which occurred in Panama and feared harming someone or himself, thus his decision to go AWOL.  

13.  On 2 March 1976, he was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 7 years, 4 months, and 1 day of total creditable active military service, with 142 days of lost time due to being AWOL.

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation from the Army with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the Soldier’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.

17.  Army Regulation 635-200, 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 contention that his character of discharge ought to be changed was carefully considered; however, it was found to have insufficient evidence to support his request.

2.  His record reflects 4 separate periods of AWOL amounting to 142 days of lost time.

3.  He received NJP under the provisions of Article 15 of the UCMJ on 4 separate occasions and was found guilty before a special court-martial under the provisions of Article 86 of the UCMJ.

4.  His record also shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial, which may have resulted in a felony conviction.

5.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

6.  He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  It is not a requirement that he be present to sign the discharge document.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

7.  Although he states his mental condition caused him to go AWOL, he mentioned at the time that his mental condition occurred in Panama.  Yet, his AWOL offenses started in January 1969, before he ever went to Panama.

8.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.    This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to the relief requested.




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)                                         AR20140006167





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ABCMR Record of Proceedings (cont)                                         AR20140006167



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