BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140009210 


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 the actions taken by the Army were alleged and untrue.

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 2 July 1973.  He reenlisted on 
5 April 1976.

3.  His record reveals a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:
   a.  27 September 1976, for willfully disobeying a lawful order and for leaving his appointed place of duty.

   b.  28 June 1978, for wrongfully possessing 20 grams, more or less, of marijuana.

   c.  12 January 1979, for failing to go at the time prescribed to his appointed place of duty. 

   d.  1 May 1979, for failing to go at the time prescribed to his appointed place of duty and for absenting himself from his place of duty for the periods 18 to      19 and 21 to 30 March 1979; for missing movement on 15 and 21 March 1979; and for willfully disobeying a lawful order on 15 March 1979.
   
   e.  11 May 1979, for absenting himself from his unit for the period 2 to 4 May 1979 and for failing to go at the time prescribed to his appointed place of duty on 8 May 1979.

4.  His record contains a DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 5 February 1980, which states the applicant was pending court-martial for violation of Article 134, UCMJ (selling and possession of hashish).

5.  His discharge packet is not available for review; however, his record contains a duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 3 April 1980, after completing 6 years,        8 months and 21 days of net creditable active military service with lost time for the periods 21 to 29 March 1979 and 2 through 3 May 1979.  This form also shows he was issued a separation code of "JFS," which denotes he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  The narrative reason for his separation was an administrative discharge due to conduct triable by court-martial.  It also shows that his service was characterized as under other than honorable conditions.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.


7. 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 3-7a 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 contention that his discharge should be upgraded to a general discharge was carefully considered and determined to lack merit.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) 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.  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 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 applicant's discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows numerous instances of NJP under the provisions of Article 15 of the UCMJ and that he was absent from his unit, without authority, for the periods 21 to 29 March 1979 and 2 to 3 May 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 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)                                         AR20140009210





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140009210



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1