IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140012748 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states:

	a.  He was told at the processing center that after a number of years he could upgrade his discharge.

	b.  When he enlisted in the Army he wanted to follow in the footsteps of his father who was a military police officer during World War II and his brother who proudly served in Vietnam.

	c.  He completed basic training and while in advanced individual training (AIT) he was notified his mother had a stroke.  He requested leave, but his request was denied.  He left to see his mother without permission and was considered absent without leave (AWOL).  After visiting his mother he turned himself in and faced the military justice system.  He was told by his superiors that after some time passed he could apply for a general discharge by proving to the Army he was a good citizen and patriot.

	d.  Since his discharge, he has never been arrested.  He got married, raised three children, bought a home, has a business, pays taxes, and has been a model citizen and patriot.  He was a very young man 34 years ago and regrets he could not finish his commitment with the Army.

3.  The applicant provides:

* DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions)
* discharge orders

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 was born on 5 September 1956.  He enlisted in the Regular Army on 4 November 1980 for 3 years.  He completed basic training.

3.  While in AIT, records show he was AWOL from:

* 6 February 1981 to 23 February 1981
* 27 February 1981 to 30 March 1981

4.  On 3 April 1981, charges were preferred against him for the 27 February 1981 to 30 March 1981 AWOL period.

5.  On 3 April 1981, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and given a discharge under other than honorable conditions, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected to make a statement in his own behalf.  In summary, he stated:

* he joined the Army because his father talked him into becoming a military policeman
* he wanted a chapter 10 discharge because he was not military material
* he gave it his best effort, but he was not happy being in the service
* his father was very disappointed in him, but he must live his own life
* his father was too demanding 

6.  On 20 April 1981, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

7.  On 11 May 1981, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 4 months and 17 days of creditable active service with 49 days of lost time.  His service was characterized as under other than honorable conditions.

8.  There is no evidence that he 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.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

10.  The U.S. Army has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told he could upgrade his discharge after a number of years.  However, a discharge upgrade is not automatic.

2.  He contends he was a very young man 34 years ago.  However, age is not a sufficiently mitigating factor.  He was 24 years old when he enlisted in 1980.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

3.  He also contends he has been a model citizen and patriot.  However, good post-service conduct alone is not a basis for changing a service characterization.

4.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  His brief record of service included 49 days of lost time.  As a result, his record of service was not satisfactory.

6.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant a general 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 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)                                         AR20140012748



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ABCMR Record of Proceedings (cont)                                         AR20140012748



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