BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140009739 


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.

2.  The applicant states:

	a.  the discharge was improper because his alcohol dependent disability was never addressed through counseling. 

	b.  during his assignment at Fort Riley he had the opportunity in the LC&DC Course (correctly known as Primary Leadership Development Course (PLDC)) of working with one of the drill sergeants one-on-one who was retraining Soldiers who were facing discharge under Article 15 and court-martial.

	c.  he was never given the opportunity for rehabilitation after 11 years of dedicated service.

3.  The applicant provides:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 23 May 1972 and 6 March 1975
* a DD Form 214 (Report of Separation From Active Duty), dated 12 July 1977
* a DD Form 214 (Certificate of Release or Discharge From Active Duty), dated 10 November 1982
* a DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States)
* a DD Form 2A (Personnel Qualification Record, Part 1)
* two DA Forms 1059 (Service School Academic Evaluation Report)
* two DA Forms 2166-4 (Enlisted Efficiency Report
* seven DA Forms 2166-5 (Enlisted Evaluation Report)
* a DA Form 2166-5A (Senior Enlisted Evaluation Report)
* a DA Form 2166-6 (Enlisted Evaluation Report)
* four USAEER Form 10 (Enlisted Evaluation Data Report)
* a memorandum
* a citation

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 (RA) on 8 February 1971 and served until he was discharged honorably on 23 May 1972, for the purpose of immediate Reenlistment.

3.  He reenlisted in the RA on:

	a.  24 May 1972 and served until he was discharged for the purpose of immediate reenlistment on 6 March 1975. 

	b.  7 March 1975 and served until he was discharged for the purpose of immediate reenlistment on 12 July 1977.

	c.  13 July 1977.

4.  He provided a snapshot of his Official Military Personnel File to include his:

* Enlisted Evaluation Reports, dated from 21 March 1978 to April 1984
* two DA Forms 1059, which show the military school and correspondence course he completed
* memorandum and citation which show he received the Thai Parachutist Badge with Fourragare. 

5.  His record contains his disciplinary history which shows:

	a.  his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

		(1)  six instances of failing to go at the prescribed time to his appointed place of duty on 16 August and 1, 3, 7, and 14 September 1982;

		(2)  disobeying a lawful order from a noncommissioned officer (NCO) on 26 and 30 August and 20 September 1982;

		(3)  being disorderly on 8 September 1982;

		(4)  intending to deceive by signing an official document that he knew was false on 12 September 1982; and

		(5)  being absent without leave (AWOL) from 15 to 16 September and     20 to 22 September 1982. 

	b.  a DD Form 458 (Charge Sheet), dated 6 October 1982, that shows court-martial charges were preferred against him for:

		(1)  two specifications of disobeying lawful orders from an NCO on 29 and 30 September 1982; 

		(2)  one specification of failing to provide adequate and continuous support for his legal dependents from 20 August to 6 October 1982; 

		(3)  one specification of dereliction of duty on 29 September 1982;

		(4)  one specification of using provoking words toward a private first class on 30 September 1982; and

		(5)  two specifications of breaking restriction on 30 September 1982.

6.  On 14 October 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Although the applicant's separation packet says he would submit a statement on his own behalf, there is no statement attached to his discharge packet. 

7.  The applicant's unit commander and intermediate commanders subsequently recommended approval with the issuance of an under other than honorable conditions discharge certificate.

8.  On 26 October 1982, the applicant requested the withdrawal of his request for discharge for the good of the Service.  On the same date, the separation authority disapproved his request.

9.  On 6 November 1982, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and be issued an under other than honorable conditions discharge.

10.  On 10 November 1982, the applicant was discharged accordingly.  He completed 5 years, 3 months, and 17 days of creditable active service with 11 days of time lost.

11.  On 7 October 1988, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge.

12.  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 evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  His service records show he was AWOL for a total of 11 days, had NJP, and was preferred for court-martial charges.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In view of the foregoing evidence, there is an insufficient basis for upgrading his 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)                                         AR20140009739





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ABCMR Record of Proceedings (cont)                                         AR20140009739



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