IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140011416 


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 his under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, he would like an upgrade to an honorable discharge.

3.  The applicant provides no additional evidence.

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 3 March 1978.  After completing initial training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade attained was private first class/E-3.
3.  Following completion of training, the applicant was assigned to A Company, 1st Battalion, 12th Infantry Regiment, Fort Carson, CO.

4.  His records contain two DA Forms 4187 (Personnel Action) which show he was confined by civil authorities on 6 February 1979 and he returned to duty on 9 February 1979.  The nature of his confinement and the disposition of his case are not known.

5.  On 20 June 1979, he departed his Fort Carson unit in an absent without leave (AWOL) status, and on 20 July 1979 he was dropped from the rolls as a deserter.  He was apprehended by civil authorities in Phoenix, AZ, and returned to military control on 26 October 1979.

6.  It appears following his return to duty, his command preferred court-martial charges against him.

7.  The complete facts and circumstances of the applicant's discharge packet are not available for review.  However, his records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged on 6 December 1979 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service, with an under other than honorable conditions discharge.  This form also shows he completed a total of 1 year, 5 months, and 17 days of creditable active military service, and he had 131 days of lost time.  

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

9.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  


   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.  The applicant's contention that his discharge should be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  Absent evidence to the contrary, the applicant’s request for discharge for the good of the service to avoid trial by court-martial under the provisions of 
chapter 10, Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

3.  There is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant's record reflects a history of indiscipline.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  Accordingly, there is no basis upon which to grant 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)                                         AR20140011416



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ABCMR Record of Proceedings (cont)                                         AR20140011416



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