IN THE CASE OF:	  

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140013602 


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 (UOTHC) to a general discharge.

2.  The applicant states:

* he was unable to adjust to service in Korea, so he was absent without leave (AWOL)
* he returned to his unit and was discharged

3.  The applicant provides 

* separation authority's action
* letter from the Chief, Enlisted Branch, U.S. Army Training Center and Fort Dix

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 11 June 1974 for 2 years.  He completed his training and was awarded military occupational specialty 05F (radio teletype operator).  On 4 June 1976, he was honorably released from active duty.

3.  He again enlisted in the Regular Army on 18 August 1976 for 5 years.  He arrived in Korea on 24 February 1978.

4.  In September 1978, nonjudicial punishment (NJP) was imposed against him for violating a lawful general regulation (exceeding the monthly authorized allowance of dollar expenditures in commissary and exchange merchandise and the monthly authorized allowance of controlled food items).

5.  His charge sheet is not available for review, but his records show he was AWOL from:

* 8 to 11 February 1979 (4 days)
* 16 February to 22 March 1979 (35 days)

6.  On 26 March 1979, 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 UOTHC and given a UOTHC Discharge Certificate, 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 UOTHC.  He elected not to submit a statement in his own behalf.

7.  On 18 April 1979, the separation authority approved the applicant's voluntary request for discharge and directed his discharge UOTHC.  He departed Korea on 1 May 1979.

8.  On 2 May 1979, 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 2 years, 7 months, and 11 days of creditable active service during this term of enlistment.  His service was characterized as UOTHC.

9.  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.

10.  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 under the Uniform Code of Military Justice 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 UOTHC is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was AWOL because he was unable to adjust to service in Korea and he was discharged when he returned to his unit.

2.  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.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

3.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

4.  His record of service during his last enlistment included one NJP and 39 days of lost time.  As a result, his record of service was not satisfactory.

5.  In view of the foregoing information, there is an insufficient evidentiary basis for granting him 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)                                         AR20140013602



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013602



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1