IN THE CASE OF:	  

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140014314 


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 under other than honorable conditions discharge.

2.  The applicant states at the time of his discharge, he was young and did not realize the consequences of his actions.  He has since gotten older and matured.

3.  The applicant provides a letter from his employer with a cash voucher and multiple character reference letters.

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's records show he was born in October 1957 and enlisted in the Georgia Army National Guard (GAARNG) at 19 years and 2 months of age on 13 December 1976.  He appears to have been assigned to 1st Battalion, 230th Field Artillery, 48th Infantry Brigade (Mechanized), Savannah, GA. 

3.  On 29 May 1978, he was convicted by a summary court-martial of 12 specifications of absenting himself from multiple unit training assemblies between November 1977 and April 1978.  The court sentenced him to confinement for 20 days.

4.  On 6 August 1979, he was discharged from the GAARNG and on the next day, he was ordered to active duty for 20 months and 24 days.  He was assigned to Fort Bragg, NC.

5.  On 13 February 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 

6.  On 24 July 1980, at nearly 23 years of age, he departed his unit in an absent without leave (AWOL) status and on 22 August 1980, he was dropped from the rolls as a deserter.  He ultimately surrendered to military authorities on 7 November 1980.

7.  On 7 November 1980, court-martial charges were preferred against him for one specification of being AWOL. 

8.  On 12 November 1980, he consulted with legal counsel and was advised 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 UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he 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.  In his request for discharge, he acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service
* he did not elect to submit a statement in his own behalf 

9.  On 13 November 1980, the applicant's immediate and senior commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions characterization of service.  The immediate commander stated that he interviewed the applicant.  During the interview, the applicant stated he was aware of the nature and the consequences of his discharge and he desired elimination. He attributed his AWOL to personal problems and his dislike of the Army.

10.  On 24 November 1980, consistent with the chain of command recommendations, the separation authority approved his request for discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge with reduction to the lowest enlisted grade. On 8 December 1980, he was discharged accordingly.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 December 1980 for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 1 year and 19 days of active service and he had lost time from 24 July to 6 November 1980. 

12.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations 

13.  He provides a letter from his employer naming him as the new banquet captain taking over duties at the Banquet Department, Embassy Suites/Holiday Inn, Raleigh, NC.

14.  He also provides multiple character reference letters from various individuals who have known him or worked with him over the years.  The authors describe him as an individual with excellent communication skills.  He is also described as organized, reliable, dependent, a hard worker, and church-going. 

15.  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 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.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

	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's records show he 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.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  The applicant was 19 years of age at the time of his enlistment and nearly 23 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The evidence of record clearly shows he chose to be AWOL and the court-martial charges were related to AWOL.  He was advised of his rights and knew the implications of his choice.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading his 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)                                         AR20140014314



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ABCMR Record of Proceedings (cont)                                         AR20140014314



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