BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140007245 


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 an upgrade of his discharge under other than honorable conditions to a general discharge.

2.  The applicant states:

* He enlisted in the Regular Army (RA) when he was 18 years old
* Not long thereafter he found himself in a position where he felt he had to choose between fulfilling his enlistment obligation or his family obligation
* He was the part-time caretaker for his younger brothers and sister
* His father worked out of town and his mother held multiple jobs to support their family
* He witnessed the toll that his mother's work schedule was having on her and the rest of the family
* His mother was suffering from an extreme state of exhaustion
* He made the painful, unfortunate, and misguided decision to absent himself without leave (AWOL) to try to provide for his immediate family
* He left the military for the noble goal of trying to better the lives of his family, not to benefit himself
* While attending jump school he fractured both feet and now wears braces on his feet in an attempt to walk with less pain
* His discharge should be upgraded to reflect his noble, yet misguided decision to leave the military to assist his family so they could have a better life


3.  The applicant provides: 

* Attorney's letter, dated 16 April 2014
* DD Form 214 (Report of Separation from Active Duty), dated 7 December 1977
* Affidavits given by his family members and himself to the State of South Carolina Department of Veteran Affairs (VA)

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 RA on 7 January 1976 at age 18.  He completed training as a tactical wire operations specialist.

3.  The applicant accepted nonjudicial punishment (NJP) on three separate occasions between 30 November 1976 and 21 June 1977 for being AWOL on the following dates:

* 8 November until 15 November 1976
* 27 December 1976 until 16 January 1977
* 13 June until 15 June 1977

4.  The facts and circumstances pertaining to the applicant's discharge are not available.  His DD Form 214 shows he was discharged on 7 December 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 1 year, 5 months, and 21 days of net active service this period.  He had 160 days of lost time due to AWOL and in confinement.  He was discharged under other than honorable conditions.

5.  The applicant provides a self-authored affidavit and affidavits from his family members attesting to their living conditions while he was in the Army and after his discharge from the Army.

6.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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 VA 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 furnished 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 applicant's contentions have been noted and his supporting evidence has been considered.

2.  The available evidence shows the applicant was AWOL and accepted NJP on at least three separate occasions.  The evidence is void of the specific facts and circumstances surrounding his discharge action.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the type of discharge he received accurately reflects his overall service.

4.  There is no evidence of record substantiating his contention that he was going AWOL to assist his family.  As he noted, he had other avenues through which he could have pursued assistance in lieu of going AWOL.

5.  The applicant has not shown an error or injustice in the type of discharge he received.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140007245



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ABCMR Record of Proceedings (cont)                                         AR20140007245



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