IN THE CASE OF:  	  

		BOARD DATE:  2 June 2015	  

		DOCKET NUMBER:  AR20140011349 


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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he did not take the opportunity to attend his previous upgrade hearing [before the Army Discharge Review Board (ADRB)] due to a new job.  He would like the opportunity to verbally address the Board and provide what he considers extenuating circumstances that were in play at the time of his discharge. 

3.  The applicant provides no supporting documentation.

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 28 June 1977, completed training, and was awarded the military occupational specialty 64C (Motor Transport Operator).  

3.  On June 1980, the applicant was honorably discharged with an immediate reenlistment.   

4.  On 8 June 1980, he was promoted to the rank of specialist five (SP5)/pay grade E-5.

5.  The applicant was reported absent without leave (AWOL) commencing on 6 November 1980.  The applicant voluntarily returned to military control on 5 January 1981.  

6.  There is no evidence of any negative or disciplinary actions prior to the applicant's AWOL.  His record shows he was awarded the Army Commendation Medal for meritorious service.

7.  On 16 January 1981, the applicant was charged with AWOL for the period from 6 November 1980 to 5 January 1981.  

8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the Uniform Code of Military Justice.  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted; he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  He elected not to submit a statement in his defense. 

9.  On 21 June 1981, the applicant was evaluated by a medical doctor who found the applicant had the mental capacity to understand and participate in the separation proceedings and that he was mentally responsible for his actions.  

10.  On 21 January 1981, the applicant's immediate commander recommended approval of the discharge request with a UOTHC.  

11.  The record shows the applicant was placed on excess leave from 22 January 1981 through 27 February 1981.

12.  On 30 January 1981, the applicant's intermediate commander recommended approval of the discharge request with a UOTHC.  

13.  On 3 February 1981, the separation authority approved the discharge request and directed the applicant receive a UOTHC and be reduced to the lowest enlisted grade. 

14.  The applicant was discharged in pay grade E-1 with a UOTHC on 27 February 1981.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time reflects his total period of service from 28 June 1977 through 27 February 1981 was 3 years and 6 months of net active service with 60 days of lost time and 35 days of excess leave.  His awards included an Army Commendation Medal and a Good Conduct Medal. 

15.  On 10 November 1982, the ADRB granted the applicant's request to upgrade his characterization of service to a GD based on their determination his initial characterization of service was too harsh in light of his prior honorable period of service, his awards, tour in Germany, and his promotion to E-5 during his second enlistment.  The ADRB did not deem it appropriate to change his narrative reason for discharge.

16.  The DD Form 214 issued after the ADRB decision shows the applicant's characterization of service as a GD and restored his separation pay grade to E-5 and rank to SP5.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

   a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred; submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.   

18.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requested a personal appearance hearing before the Board, there is no statutory or regulatory right to a formal hearing.  Formal hearings are granted when it is determined that a case is so complex, or the records so incomplete that only sworn testimony provided by witnesses can provide the Board the necessary information.  The applicant's record contained his complete separation packet to include the charge sheet, his own request for discharge and the separation authority's decisional document.  There is no available evidence to substantiate the applicant's contention that there were extenuating circumstances of such a nature as to warrant a personal appearance.

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

3.  The ADRB in 1982 determined that, based on his prior honorable period of service, his awards, a tour in Germany, and his promotion to E-5 during his second enlistment, the UOTHC discharge he received was unduly harsh and granted him an upgrade to a GD and restoration of his rank and pay grade.  A new DD Form 214 was prepared based on the ADRB decision.

4.  However, the applicant's service was significantly marred by his 60 days of AWOL.  He has not presented and the record does not contain any evidence, basis or factors, beyond those considered by the ADRB, warranting a further upgrade on his characterization of service to an honorable discharge.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
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)                                         AR20140011349



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ABCMR Record of Proceedings (cont)                                         AR20140011349



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