IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007958 


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 to a general discharge.

2.  The applicant states he was told if he got out he would receive a general under honorable conditions discharge.  He could not adjust to what happened to him when they changed his military occupational specialty (MOS) and he is willing to do anything to get it corrected.  He is age 62; however, he would reenlist, do light work, or some paperwork to help himself.  He further states, in effect, he would not have signed anything if he was not going to receive a general under honorable conditions discharge and he believes he was lied to.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 29 May 1979.  His records contain Annex B, DA Form 3286-18 (Statements for Enlistment - Part IV - United States Army Special Unit Enlistment Option), dated 29 May 1979, which shows the applicant enlisted for a term of three years.  Upon completion of basic training, he was to undergo advanced individual training (AIT) in MOS 76D (Materiel Supply Specialist). 

3.  Upon completion of basic training the applicant was sent to Fort Lee, VA for AIT in MOS 76D.  His record contains a Form 442 (Disposition of Student), dated 20 August 1979.  A member of the Training Division recommended the applicant be relieved from the 76D course for not completing the prescribed work in the allocated time.  The form states the applicant had not done anything since         25 July 1979.  Further, it was recommended the applicant be discharged from the Army due to a lack of motivation and for not being able to adjust to military life.

4.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 August 1979 for being absent without leave (AWOL) from his unit from 27 July to 10 August 1979.

5.  On 2 January 1980, court-martial charges were preferred against the applicant for violating Article 86, UCMJ, for absenting himself from his training unit at Fort Lee, VA, without authority, for the period 27 August to 19 December 1979.

6.  On 8 January 1980, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ that authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested 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.

7.  In his request for discharge, he indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration.  He acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.  The applicant submitted a statement on his own behalf in which he stated he:

* had family problems with his "old lady" and children
* was an only child and his father had cancer and needed him to help out
* was having a back problem
* was thrown out of class for sleeping and he was told he would be sent to Fort Sill, OK for artillery training

8.  His immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge.

9.  On 11 March 1980, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

10.  The applicant was discharged on 15 April 1980.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  His DD Form 214 further shows he completed 6 months and 12 days of creditable active service and he had lost time for the periods 27 July to 9 August and 27 August to 18 December  1979.

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

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

	a.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   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 contention that his discharge should be upgraded to a general discharge was carefully considered and determined to lack merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ 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 evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

4.  The applicant's record of service shows he was absent from his unit, without authority, for the periods 27 July to 9 August and 27 August to 18 December 1979.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request.

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)                                         AR20140007958





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ABCMR Record of Proceedings (cont)                                         AR20140007958



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