BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140009165 


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.

2.  The applicant states he was not in the right mind at the time his girlfriend told him she was pregnant and leaving back to her home.  He was stationed in Alaska at the time.  He later found out she lied about the pregnancy and this made him confused.  Nevertheless, he has improved his life personally since discharge and he is only looking for getting buried with honors, when the time comes. 

3.  The applicant provides:

* Enlisted Evaluation Report (EER)
* Letter of Commendation
* Personnel Security Action Record
* DD Form 214 (Report of Separation from Active Duty), ending on 23 August 1979
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 27 February 1980

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 12 January 1977 and held military occupational specialty 75B (Personnel Administration Specialist).  He served in Alaska from 16 May 1977 to 15 May 1979.  

3.  On 19 October 1978, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order. 

4.  On 25 July 1979, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  He was reduced to E-3. 

5.  He was honorably discharged from active duty on 23 August 1979 for the purpose of reenlisting in the Regular Army.  His DD Form 214 shows he completed 2 years, 7 months, and 12 days of active service.  He was awarded or authorized the:

* Expert Marksmanship Qualification Badge with Rifle Bar
* Expert marksmanship Qualification Badge with Grenade Bar

6.  He reenlisted in the Regular Army on 24 August 1979.  He was assigned to Fort Carson, CO at the time.  

7.  On 1 October 1979, he departed his Fort Carson unit in an absent without leave (AWOL) status, but he returned to military control on 13 October 1979.  

8.  On 15 October 1979, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 1 to 13 October 1979.  

9.  On 22 October 1979, he again departed his Fort Carson unit in an AWOL status and on 23 October 1979, he was dropped from the rolls as a deserter.  He would later be apprehended by civil authorities and returned to military control on 10 January 1980. 
10.  When he departed AWOL on 22 October, the very next day, his chain of command preferred court-martial charges against him for one specification of AWOL from 22 October 1979 to a future date. 

11.  When he was apprehended by civil authorities, he was returned to military control at Fort Ord, CA.  It appears that is where court-martial charges were preferred against him and that is where his separation took place. 

12.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain a DD Form 214 that shows he was discharged on 27 February 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions character of service.  This form also shows he completed 3 months and 2 days of creditable active service during this period and he had lost time from 1 to 12 October 1979 and from 22 October 1979 to 9 January 1980. 

13.  On 2 June 1981, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge.  The ADRB provided a chronology of events as follows:  

* on 14 January 1980, he underwent a separation physical
* on 16 January 1980, he was counseled by counsel and subsequent to counseling, he submitted a voluntary request for discharge in lieu of trial by a court-martial
* on 11 and 13 February 1980, his chain of command recommended approval of the discharge action
* on 19 February 1980, his discharge was legally reviewed and found legally sufficient
* on 19 February 1980, the separation authority approved the discharge action and ordered him discharged with an under other than honorable conditions discharge  
* on 27 February 1980, he was discharged  

14.  He provides a copy of his EER for the rating period May 1977 through May 1978 as well as a letter of commendation, dated 18 May 1978.  

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

	a.  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.

	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 complete facts and circumstances that led to his discharge.  However, his record contains court-martial charges for being AWOL as well as a DD Form 214 that shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 27 February 1980 under the provisions of Army Regulation 635-200, chapter 10.

2.  The issuance of a discharge under the provisions of chapter 10 of Army Regulation 635-200, required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by 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 provided no evidence that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service during his last enlistment.

3.  Nothing in his records shows he went AWOL because his girlfriend was pregnant or told him she was pregnant.  The evidence shows he was AWOL on more than one occasion.  

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, 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)                                         AR20140009165



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ABCMR Record of Proceedings (cont)                                         AR20140009165



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