IN THE CASE OF:  	  

		BOARD DATE:  29 January 2015	  

		DOCKET NUMBER:  AR20140010157 


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 to a general or an honorable discharge.

2.  The applicant states he served honorably in the U.S. Army from 1972 to 1981.

   a.  He states that his wife was having an affair and wanted a divorce, but he did not want a divorce.  She left him and his 4 year old son.  He then left in an attempt to find her and save their marriage.  At the time he was serving as an instructor in grade E-5 and he had a clean military record.

   b.  He also states that his wife died in an accident (in 1988 or 1989) and he has cared for his son since then.

3.  The applicant provides copies of his DD Forms 214 (Reports of Separation from Active Duty/Certificate of Release or Discharge from Active Duty).

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 10 July 1972 for a period of 4 years.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  A DD Form 214 shows the applicant was honorably discharged on 9 June 1974 to reenlist in the RA.  He had completed 1 year and 11 months of net active duty service this period.

4.  He reenlisted in the RA on 10 June 1974 for a period of 6 years.  He served overseas in Germany from 28 May 1974 through 12 July 1977.

5.  A DD Form 214 shows the applicant was honorably discharged on 1 March 1979 to reenlist in the RA.  He had completed 4 years, 8 months, and 22 days of net active duty service this period.

6.  He reenlisted in the RA on 2 March 1979 for a period of 6 years.  He was promoted to staff sergeant/pay grade E-6 on 18 July 1979.

   a.  He served overseas in Germany from 6 May 1979 through 1 May 1981.  

   b.  He accepted nonjudicial punishment (NJP) on two separate occasions for:

* on 31 January 1980:

* wrongfully using provoking words towards a warrant officer
* being drunk and disorderly in public

* on 19 April 1980, operating a motor vehicle while intoxicated (he was reduced to sergeant/pay grade E-5 on 22 April 1981)

   c.  On 24 June 1981, he was assigned as an instructor to Headquarters and Headquarters Battery, U.S. Army Field Artillery Training Center, Fort Sill, OK.

7.  On 10 November 1981, he accepted NJP for being absent without leave (AWOL) from 5 October 1981 to 24 October 1981.

   a.  His punishment was forfeiture of $200.00 per month for 2 months (suspended, to be automatically remitted if not vacated before 5 April 1982) and reduction to specialist four/pay grade E-4.

   b.  The applicant appealed the NJP.  In his letter of appeal he indicated that he did not provide the battalion commander all of the information surrounding his reasons for going AWOL.  He acknowledged personal and financial problems and added, "[w]ith this reduction in grade, it would only add to my problems."  He concluded by stating, "I also feel that I would try everything possible to be discharged from the U.S. Army for the Good of the Service because I would not be able to perform my duties and responsibilities to the best advantage to the Army."

   c.  The appeal authority denied the appeal and the applicant was notified on
8 December 1981.

8.  On 11 January 1983, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 13 February 1982 to 10 January 1983.

9.  On 12 January 1983, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might:

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and reduced to the pay grade of E-1.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to submit any statements.

   e.  The applicant and his counsel placed their signatures on the document.

10.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.  The immediate commander noted the applicant indicated that he went AWOL for personal reasons and that he was disillusioned with the military.  He confirmed that the applicant was charged with 340 days of AWOL.

11.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

12.  The applicant's DD Form 214 shows he entered active duty this period on 
2 March 1979 and he was discharged on 10 February 1983 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, with an under other than honorable conditions characterization of service.

13.  The applicant submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 6 September 1986, the ADRB notified the applicant that it determined the reason for his discharge and the character of his service was both proper and equitable.  Accordingly, the ADRB denied the relief requested by the applicant.

14.  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.  Chapter 3, 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.  Chapter 3, 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 contends his discharge should be upgraded because he served honorably in the RA from 1972 to 1981 and he had a clean military record up until the time he went AWOL.

2.  Records show the periods of the applicant's honorable service (i.e., his initial enlistment in the RA from 10 July 1972 through 9 June 1974 and his reenlistment in the RA from 10 June 1974 through 1 March 1979) are properly documented by two DD Forms 214.

3.  The applicant reenlisted in the RA on 2 March 1979.

   a.  After he reenlisted, he received  NJP on two separate occasions for:
   
* wrongfully using provoking words towards a warrant officer and 
being drunk and disorderly in public
* operating a motor vehicle while intoxicated

   b.  He then received NJP for being AWOL from 5 October 1981 to 24 October 1981.  At that time he acknowledged personal and financial problems, but also expressed his desire to be discharged from the Army for the good of the service.

   c.  Court-martial charges were preferred against the applicant for being AWOL from 13 February 1982 to 10 January 1983.
   
   d.  Thus, his contention that he had a clean military record up until the time he went AWOL is not supported by the evidence of record.


4.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the reason for discharge and characterization of service were appropriate and equitable.

5.  During the period of service under review, the applicant was charged with an offense punishable by a bad conduct or dishonorable discharge, he had 
340 days of time lost, and he failed to complete his 6-year reenlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

6.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

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)                                         AR20140010157



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ABCMR Record of Proceedings (cont)                                         AR20140010157



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