BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140012602 


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 to an honorable or general discharge. 

2.  The applicant states he had been told his discharge had been upgraded.  He and a buddy got out under the same conditions and his buddy received a general 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 New Jersey Army National Guard (NJARNG) on 22 March 1975.  He served on active duty for training from 28 April to 5 October 1975 and he was awarded military occupational specialty 31M (Multi-Channel Communications Equipment Operator).

3.  On 4 June 1979, he was ordered to active duty for failure to complete his required ARNG service with a report date of 25 July 1979 to the U.S. Army Reception Station (USARECSTA), Fort Dix, NJ, and final assignment to the 1st Adjutant General Replacement Detachment, Fort Riley, KS.

4.  On 24 July 1979, he was discharged from the NJARNG under honorable conditions for failure to complete his required ARNG service and he was transferred to the USARECSTA, Fort Dix.

5.  On 25 July 1979, he was reported as absent without leave (AWOL) for failure to report to the USARECSTA and, on 23 August 1979, he was dropped from the rolls (DFR) as a deserter.

6.  On 13 November 1979, he was returned to military control and assigned to the Personnel Control Facility (PCF), Fort Dix.  Court-martial charges were subsequently preferred against for him for being AWOL from 25 July to 12 November 1979.

7.  On 20 November 1979, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  He declined to submit a statement in his own behalf.



9.  On 21 November 1979, he was granted excess leave pending the processing of his request for a chapter 10 discharge.

10.  On 28 December 1979, his immediate commander recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  His commander stated that, in his opinion, the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation.

11.  On 23 January 1980, the separation authority approved his request for a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 18 February 1980, he was discharged accordingly.

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 3 months and 6 days of net active service of which 2 months and 29 days was excess leave, and he had 111 days (3 months and 19 days) of lost time due to being AWOL.

13.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  An under other than honorable conditions discharge was normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, provides 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.



16.  Army Regulation 635-200, 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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  Notwithstanding his contention that he had been told his discharge was upgraded, the Army has never had a policy of automatically upgrading discharges.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140012602





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ABCMR Record of Proceedings (cont)                                         AR20140012602



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