IN THE CASE OF:  	  

		BOARD DATE:  20 January 2015	  

		DOCKET NUMBER:  AR20140009786 


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 under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* he went home on leave and could not find his wife and children
* his family and his wife's family did not know where they were
* he found his two children with a friend of his wife
* his wife went to Jamaica with someone she met
* he regrets his actions as he was young and did not know what to do
* he is now older and more mature and responsible
* he raised his children to adulthood
* he is active in his neighborhood, a devoted Christian, and he helps those he can

3.  The applicant provides:

* self-authored statement
* two character-reference letters

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 12 November 1976.

3.  On 9 February 1978, the applicant's status changed from present for duty to absent without leave (AWOL).  On 10 February 1978, his status changed from AWOL to present for duty.

4.  On 31 July 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go his appointed place of duty on or about 29 June 1978 and 11 July 1978.  His punishment included a suspended reduction to the grade of E-2 until 1 October 1978.

5.  On 14 September 1978, the suspended portion of the applicant's punishment under the Article 15 proceedings, dated 31 July 1978, was vacated due to disobeying a lawful order.

6.  On 5 December 1978, the applicant accepted NJP under the provisions of Article 15 for being AWOL on or about 5 November 1978 until on or about 12 November 1978.  His punishment included a suspended reduction to E-1 for 90 days.

7.  On 14 December 1978, the applicant's status changed from present for duty to AWOL.  On 18 December 1978, his status changed to present for duty.

8.  On 18 December 1978, the suspended portion of the applicant's punishment under the Article 15 proceedings, dated 5 December 1978, was vacated.

9.  On 19 December 1978, the applicant's status changed from present for duty to AWOL and then to dropped from the rolls.

10.  On 13 February 1979, the applicant surrendered to military authorities.  His status changed from dropped from the rolls to present for duty.

11.  On 16 February 1979, charges were preferred against the applicant for being AWOL from on or about 19 December 1978 until on or about 13 February 1979.

12.  On 21 February 1979, the applicant consulted with counsel and he was advised of his rights and advantages of remaining in an active duty status in the Army beyond his scheduled date of expiration of term of service (ETS) for the purpose of continued medical care or hospitalization and, if eligible, subsequent separation or retirement for physical disability under the provisions of Title 10, U.S. Code, chapter 61.  The applicant elected to not remain on active duty beyond his scheduled ETS date.

13.  On 21 February 1979, the applicant consulted with legal counsel who advised him that the government had not received the necessary documentation and/or records with which to obtain a conviction at court-martial at the time.  He was further advised that his counsel could not completely advise him without the records.  Nevertheless, having knowledge of this, the applicant waived all defenses that may have become known had his defense counsel been able to review his records.  He willingly and voluntarily declared that:

* he was AWOL from 19 December 1978 to 13 February 1979
* he made the admission for administrative purposes only to process out of the Army and he acknowledged he understood he could receive a discharge under other than honorable conditions
* his military defense counsel had explained to his complete understanding and satisfaction all legal and social ramifications of the type of discharge and what it meant in the future
* the agreement only pertained to his AWOL and he realized the Army could prefer charges any time prior to his discharge for any other military crimes that may be pending against him

14.  On 9 March 1979, the separation authority approved the applicant's discharge for the good of the service and directed characterization of his service as under other than honorable conditions and his reduction to the rank/grade of private/E-1.

15.  On 30 March 1979, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

16.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 2 months, and 14 days of active service.  He had 68 days of lost time for the periods 9 February 1978, 5 to 11 November 1978, 14 to 17 December 1978, and 19 December 1978 to 12 February 1979, prior to his normal ETS date.

17.  The applicant provided a self-authored statement explaining the circumstances leading to his AWOL and life after discharge.  He also provided two letters from individuals who state they have known him for many years and attest to his good character.

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

19.  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, the type of discharge normally given under the provisions of this chapter, the loss of veterans' benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions was normally furnished to an individual who was discharged for the good of the service.

	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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He elected to be discharged on his ETS date rather than voluntarily remaining on active duty beyond his ETS date for the purpose of continuing medical care or hospitalization.  His records show he was well advised and fully aware of the consequences of his decisions.

2.  Due to his frequent periods of being AWOL, his conduct and performance were not satisfactory.  His character of service was properly determined solely based on his military record.

3.  There is no documentary evidence of mitigating circumstances related to his periods of AWOL that would warrant changing the character of his service.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered 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 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)                                         AR20140009786



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ABCMR Record of Proceedings (cont)                                         AR20140009786



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