IN THE CASE OF:  	  

		BOARD DATE:  22 January 2015	  

		DOCKET NUMBER:  AR20140008572 


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 served honorably for 3 years.  When his wife left him he asked for assistance but nobody offered him help.  He was unable to focus and departed absent without leave (AWOL) to get his wife to come back.  He was young and made an honest mistake.  He needs his discharge upgraded so he can receive Department of Veterans Affairs (VA) benefits.

3.  The applicant provides no additional evidence.  

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 28 August 1974.  His DD Form 4 (Enlistment Contract-Armed Forces of the United States) shows he was 
18 years of age at the time of his enlistment, his marital status was listed as single, and he did not have any dependents.  

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he held military occupational specialty 11B (Light Weapons Infantryman), he was married at the time the form was completed, and he accumulated 93 days of lost time as follows:

* he was AWOL from 18 March to 26 March 1975 (9 days)
* he was dropped from the rolls (DFR) and confined by civil authorities from 31 March to 6 April 1975 (6 days)
* his status was listed as AWOL to DFR on 14 April 1975 (1 day)
* he was DFR from 29 April to 15 July 1975 (77 days)

4.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows, on 2 September 1975, he was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), chapter 10, and he received an under other than honorable conditions discharge.  He completed      9 months and 2 days of creditable active military service with 93 days of lost time.

5.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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, type of discharge normally given under the provisions of this chapter, and the loss of VA benefits.

	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 specific facts and circumstances surrounding his discharge; however, it appears he was charged with the commission of an offense that was 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.  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 would have 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 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.

3.  The applicant contends he completed 3 honorable years of service and only went AWOL because his wife left and he wanted to get her to come back.  However, his marital status at the time of his AWOL service is not a mitigating factor that justifies his misconduct.  Furthermore, the evidence of record shows he completed just 9 months and 2 days of net active service prior to his discharge.

4.  He contends his discharge should be upgraded because he was young and made an honest mistake.  However, despite his relative youth, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.

5.  His record shows he was AWOL for 93 days; therefore, 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.  In view of the foregoing, there is an insufficient evidence to grant him an honorable or general discharge.
6.  Furthermore, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20140008572



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ABCMR Record of Proceedings (cont)                                         AR20140008572



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