BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140012079 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge. 

2.  The applicant states:

* He enlisted in the Army on 19 January 1972 and he received an honorable discharge
* He reenlisted in the Army on 22 November 1974 and he got married in 1975 and that's when things started to go down hill
* His wife was having an affair, he confronted her and she wanted a divorce
* He had put everything into his marriage and the situation had actually turned his thinking upside down
* Perhaps there was no excuse for walking away from his obligation to the Army
* He has so many times regretted his decision to walk away
* He is 59 years old and he has not had any trouble in his life since getting out of the Army
* Consideration should be given to his initial period of enlistment

3.  The applicant provides a self-authored, undated statement.


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.  With prior enlisted honorable service in the Regular Army (RA) from 19 January 1972 to 21 November 1974, the applicant reenlisted in the RA for 3 years on 22 November 1974.  

3.  The applicant accepted nonjudicial punishment (NJP) on four separate occasions between 24 December 1974 and 12 January 1976 for the following offenses:

* Failure to go to his appointed place of duty (three specifications)
* Being absent without leave (AWOL) from 17 November to 8 December 1975
* Behaving with disrespect towards his superior noncommissioned officer
* Using provoking words towards another Soldier
* Failure to obey a law order
* Dereliction of duty

4.  On 21 June 1976, the applicant was notified that charges were pending against him for being AWOL from 9 February until 16 June 1976.  He acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

5.  Along with his request for discharge, the applicant elected to submit a statement in his own behalf.  He stated that he could no longer handle the Army's ways.  He stated he was "up" for a chapter 10 discharge at the time that he went AWOL; however, he felt that he could not wait for the discharge.  He stated that he wanted to go home and the captain of his unit told him to do what he wanted to do.  He stated he was "begging" to be released from the Army because he had 

a good job and a wife waiting for him in the civilian world.  He stated that there was nothing for him in the Army.  The applicant acknowledged he understood the following:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

6.  The appropriate authority approved the request for discharge on 8 July 1976 and directed the issuance of an undesirable discharge.  On 21 July 1976, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 2 months, and 28 days of net active service this period.  He had approximately 152 days of lost time.  He received an Undesirable Discharge Certificate.

7.  On 7 July 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. 

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states 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, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.

   b.  Paragraph 3-7a states 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.  Paragraph 3-7b states 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 contentions have been noted.  His supporting evidence has been considered.

2.  He is commended for his post-service conduct.  However, his post-service conduct is not sufficiently mitigating to warrant the requested relief.  His records show he accepted NJP on four separate occasions as a result of the numerous offenses that he committed.  Also, charges were pending against him for being AWOL from 9 February until 16 June 1976.

3.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial.  Along with his request for discharge, he submitted a statement in his own behalf stating that he could no longer handle the Army's ways and he had a good job and a wife waiting for him at home.  The appropriate authority approved the request and directed the issuance of an undesirable discharge.

4.  Consideration has been afforded the applicant for his initial period of enlistment.  However, the type of discharge he received for the period of his reenlistment appropriately reflects his overall record of service.  Considering the nature of his offenses the type of discharge he received was not too severe.  His service simply did not rise to the level of a general or an honorable discharge.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140012079



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ABCMR Record of Proceedings (cont)                                         AR20140012079



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