IN THE CASE OF:  

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140008242 


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 under other than honorable conditions discharge.

2.  The applicant states he was a model Soldier and he made a mistake of reporting late due to his mother being sick.  He would like to receive benefits from the Department of Veterans Affairs. 

3.  The applicant provides 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's records show he enlisted in the Regular Army on 3 June 1976. He was trained in and held military occupational specialty 11B (Infantryman).  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

3.  He served in Korea from 20 February 1978 to 16 February 1979.  Following completion of his overseas tour, he was issued assignment orders to Fort Stewart, GA. 

4.  On 23 March 1979, his gaining unit reported him in an absent without leave (AWOL) status.  He returned to military control on 26 March 1979. 

5.  On 27 March 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 23 to 26 March 1979.  

6.  On 25 April 1979, he again departed his unit in an AWOL status but he returned to military control on 2 May 1979.  

7.  On 10 May 1979, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 25 April to 2 May 1979.  

8.  On 14 May 1979, he again departed his unit in an AWOL status but he returned to military control on 15 May 1979.  

9.  On 28 May 1979, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 14 to 15 May 1979.  

10.  On 30 June 1979, he departed his unit in an AWOL status for the fourth time but he returned to military control on 3 July 1979. 

11.  On 3 October 1979, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 30 June to 3 July 1979. 

12.  On 6 November 1979, he departed his unit in an AWOL status and on 6 December 1979, he was dropped from the Army rolls as a deserter.  He surrendered to military authorities at Fort Bragg, NC, on 14 February 1980.  

13.  The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case.  However, it appears court-martial charges were preferred against him for one or more specifications of being AWOL.  His record contains the following documents:

	a.  DA Form 31 (Request and Authority for Leave) that shows he was placed on excess leave effective 22 February 1980 pending the processing of his discharge. 

	b.  Orders 54-45, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, on 19 March 1980, reducing him to the lowest enlisted grade and reassigning him in the rank of private to the U.S. Army Separation Transfer Point, effective 24 March 1979, for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

	c.  An order of expulsion from the U.S. Military Reservation, dated 24 March 1980, prohibiting him from entering the Fort Bragg Military Reservation. 

	d.  An acknowledgement memorandum, explaining the narrative reason for his separation, the reentry code, and the authority for his discharge action.

	e.  A DD Form 214 that shows he was discharged on 24 March 1980 under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 3 years, 5 months, and 21 days of creditable active service, and he had lost time as follows: 

* 7 November 1979 to 13 February 1980
* 23 March 1979 to 25 March 1979
* 2 April 1979 to 8 April 1979
* 23 April 1979 to 1 May 1979
* 3 July 1979 to 8 July 1979 

14.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 3-7a 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 record is void of the facts and circumstances that led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 24 March 1980 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

3.  Contrary to his contention that he was a model Soldier, the available evidence confirms he was AWOL on five separate occasions and he received NJP on four different occasions.  There is no evidence in the available records, nor did he provide documentation, to warrant an upgrade of his discharge. 

4.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20140008242





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ABCMR Record of Proceedings (cont)                                         AR20140008242



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