IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140010583 


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.

2.  The applicant states he served in the Regular Army (RA) from January 1972 to February 1975 and was honorably discharged.  He reenlisted in 1980 with no trouble.  He became involved with drugs and there was no help at that time.  He requests consideration of his prior honorable service.  He has not been in trouble for the last 20 years.  He was unaware that he could apply for an upgrade of his discharge.  

3.  The applicant provides copies of the following:

* Letter of Commendation
* DD Form 214 (Report of Separation from Active Duty) ending on 27 January 1975
* Certificate of Achievement
* 1978 Honorable Discharge Certificate

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the RA, in pay grade E-1, on 3 February 1972.  He was awarded military occupational specialty (MOS) 51L (heating and cooling specialist).  He received a Letter of Commendation for completion of basic training and the duties and responsibilities of a basic Soldier squad leader.  He served in Germany from 20 July 1972 through 23 January 1975.

3.  He was honorably released from active duty in pay grade E-4 on 27 January 1975 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He was issued a DD Form 214 which credited him with completing 2 years, 11 months, and 5 days of active service.

4.  On 28 January 1975, he was issued a Certificate of Achievement for exceptionally meritorious performance of duty during the period 23 July 1972 through 25 January 1975.

5.  On 2 February 1978, he was honorably discharged from the USAR and issued an Honorable Discharge Certificate.

6.  On 25 March 1980, he again enlisted in the RA for 3 years.  He was awarded MOS 64C (motor transport operator).   

7.  On 15 September 1980, he was reported absent without leave (AWOL) and on 15 October 1980, he was dropped from the rolls of his organization.  On 22 February 1981, he was returned to military control.

8.  On 3 March 1981, he underwent a mental status evaluation and was psychiatrically cleared for any administrative action deemed appropriate by his command.

9.  On 4 March 1981, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Sill, OK.  The applicant was charged with one specification of being AWOL from 15 September 1980 through 22 February 1981.  On the same date court-martial charges were preferred against the applicant.

10.  On 4 March 1981, after consulting with counsel, the applicant admitted he was knowingly, willingly, and voluntarily AWOL.  He requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged:

* He could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate and the result of the issuance of such a discharge  
* He understood that if he desired a review of his discharge, he must apply to either the Army Discharge Review Board (ADRB) or the ABCMR and that act of consideration by either board did not imply that his discharge would be upgraded
* He waived his rights and elected not to submit a statement in his own behalf  

11.  On 19 March 1981, the applicant's company commander recommended approval of the applicant's discharge with an under other than honorable conditions discharge.  The commander stated the applicant was charged with an AWOL of 160 days and was apprehended by civilian authorities.  The applicant was AWOL for personal reasons.  The applicant had become disillusioned with the military.  Further retention of the applicant would not be in the best interest of the Army.  

12.  On 24 March 1981, the separation authority approved the applicant’s request for discharge and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

13.  He was discharged accordingly on 2 April 1981.  He was credited with completing 6 months and 27 days of active service and 160 days of time lost.  His service was characterized as under other than honorable conditions.

14.  There is no evidence he applied to the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  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 was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation       635-200 are voluntary requests for discharge in lieu by court-martial.  He acknowledged the reason for his discharge and that he could be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged that he understood that if he desired a review of his discharge, he must apply to either the ADRB or the ABCMR and that act of consideration by either board did not imply that his discharge would be upgraded.  He waived his rights and elected not to submit a statement in his own behalf.    

2.  He provided no evidence or a convincing argument to show his 1981 under other than honorable conditions discharge should be upgraded and his available military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct during his period of service between September 1980 to March 1981 diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, his 1981 administrative discharge was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him 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)                                         AR20140010583



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ABCMR Record of Proceedings (cont)                                         AR20140010583



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