IN THE CASE OF:
BOARD DATE: 25 November 2014
DOCKET NUMBER: AR20140006756
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 under other than honorable conditions discharge to a general discharge.
2. The applicant states that he was going through a divorce and was trying to save his marriage.
3. The applicant provides his DD Form 214 (Report of Separation from Active Duty).
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 30 October 1973.
3. His record contains:
a. his disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:
(1) 19 September 1974, for intent to deceive a commissioned officer by making a false statement on 14 August 1974; and
(2) 19 September 1974, for being absent without leave (AWOL) from
26 August to 16 September 1974.
b. three DA Forms 4187 (Personnel Action) which show his duty status on:
(1) 20 August 1975, changed from present for duty to AWOL;
(2) 19 September 1975, changed from AWOL to dropped from the rolls (DFR); and
(3) 10 November 1975, changed from DFR to present for duty.
4. The specific facts and circumstances surrounding his discharge processing are not available for review. However, the available evidence includes a
DD Form 214 that contains the authority and reason for his discharge. It shows he was discharged on 23 February 1976 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, in lieu of by trial court-martial, with an under other than honorable conditions discharge.
5. 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.
6. 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 3-7b 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 record is void of the specific facts and circumstances surrounding his discharge; however, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.
2. Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.
3. It is further presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting his request for a discharge upgrade.
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) AR20140006756
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ABCMR Record of Proceedings (cont) AR20140006756
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