IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140010408 


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 that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was told that he could request a discharge upgrade.  He is currently incarcerated and wants to apply for Department of Veterans Affairs (VA) benefits when he is released.  He wants a copy of his DD Form 214 (Report of Separation from Active Duty).

3.  The applicant provides no additional evidence in support of his application.

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.  On 29 August 1977, he enlisted in the Regular Army for 3 years.
3.  He received nonjudicial punishment (NJP) on:

* 27 March 1978 for failing to go at the time prescribed to his appointed place of duty
* 12 June 1978 for failing to go at the time prescribed to his appointed place of duty

4.  He went absent without leave (AWOL) on 19 June 1978.  He surrendered to military authorities on 27 June 1978.

5.  He went AWOL on 17 July 1978.  He was apprehended by civil authorities and returned to military control on 11 January 1979.

6.  On 23 January 1979, court-martial charges were preferred against the applicant for being AWOL from on or about:

* 18 to 26 June 1978
* 17 July 1978 to 11 January 1979

7.  On 23 January 1979, he consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense for which he was charged
* making the request of his own free will
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate
* advised he could submit statements in his own behalf

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than other honorable conditions discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

9.  He submitted a statement in his own behalf.  He indicated he went AWOL because of family problems.  The girl he was dating got pregnant at the age of 14.  He married her in September while he was AWOL.  She was 15 years old and in the ninth grade in school.  He thought he could do her more good by being at home rather than in the Army.

10.  On 6 February 1979, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an under other than honorable conditions discharge.

11.  On 13 February 1979, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Enlisted Personnel Separations) due to conduct triable by court martial.  He had completed 11 months and 11 days of active service that was characterized as under other than honorable conditions.  He had 186 days of time lost.

12.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an under other than honorable conditions discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights. 

3.  The fact that he was apprehended by civil authorities after 174 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his under other than honorable conditions discharge to either 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)                                         AR20140010408



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ABCMR Record of Proceedings (cont)                                         AR20140010408



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