BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140014349 


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 character of service be upgraded from under other than honorable conditions to honorable.

2.  The applicant states his 7 year old son had double pneumonia and he was medically evacuated out of Germany to the United States to be with his son.  While he was in the United States he developed hepatitis and was hospitalized in McDowell County, North Carolina.  He was there for a few weeks before he was transferred to Wilmington, North Carolina.  During all this time his son was very sick.  While he was at the hospital in Wilmington, he went absent without leave (AWOL) for 4 to 6 weeks.  When his son got better he turned himself in to the Army.  He was 26 years old, he was sick, and he was worried about his son when he went AWOL; however, he did return to the Army.  He hopes his request for an upgrade is approved, because although he made a mistake he has been an upstanding and law-abiding citizen since his discharge. 

3.  The applicant provides his Under Other Than Honorable Conditions Discharge Certificate and a letter, dated 5 August 2014.

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 25 May 1977 and held military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 3 October 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from his unit in Germany from on or about 26 July 1978 to on or about 
30 July 1978; failing to go to his appointed place of duty (work formation) at the prescribed time (0730) on 1 September 1978; failing to go to his appointed place of duty (Battalion Guard) on 2 September 1978; and failing to go to his appointed place of duty (his personal bunk) at the prescribed time on 5 September 1978.

4.  His record contains a DD Form 458 (Charge Sheet), dated 4 June 1979 showing court-martial charges were preferred against him for being AWOL from on or about 11 March 1979 to on or about 3 June 1979.

5.  His record contains a Report of Medical History, Report of Medical Examination, and a Report of Mental Status Evaluation that show he had been previously hospitalized for hepatitis and an ear operation.  However, the examining medical official indicated that, while he had a level 2 profile for his hearing, he was otherwise healthy and medically qualified for separation.  Additionally, his Report of Mental Status Evaluation shows there was no significant mental illness present, he was mentally responsible, able to distinguish right from wrong and adhere to the right, he had the mental capacity to understand and participate in board proceedings, and he met the applicable retention standards.

6.  On 6 June 1979, he voluntarily requested discharge for the good of the Service 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.  He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ that authorized the imposition of a bad-conduct or dishonorable discharge.  He stated he was making this request for his own free will and had not been subjected to any coercion whatsoever by any person.  He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He acknowledged that prior to completing his request for discharge he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses which he was charged, any relevant lesser included offenses, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; possible defenses which appeared to be available at the time; the maximum permissible punishment if found guilty and of the legal effect, and the significance of his suspended discharge.

	b.  He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He also acknowledged he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

7.  His commander endorsed his request for discharge on 6 June 1979 and stated:

	a. He had personally interviewed the applicant who stated:

		(1)  He was aware of the nature of the interview, the consequences of an under other than honorable conditions discharge, and he still desired to be separated under the provisions of Army Regulation 635-200, chapter 10.

		(2)  His AWOL was caused by his dissatisfaction with the Army.  He did not realize what the Army was like when he enlisted.  He enlisted for an assignment to Germany but found it to be too expensive to bring his family.  He desired to get out of the Army with a less than honorable discharge and return to his job in the knitting mill.
	
	b.  The applicant's commander stated the applicant had surrendered to military authorities; however, in view of his personal conduct, his attitude toward military life, and his lack of rehabilitative potential, he recommended the applicant's request for discharge under the provision of Army Regulation 635-200 chapter 10, be approved and that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 4 October 1979, the separation authority approved his 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, with an under other than honorable conditions discharge.

9.  Accordingly, he was discharged on 17 October 1979.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and he received an under other than honorable conditions discharge.  He completed 2 years, 1 month, and 26 days of creditable active military service with 89 days of time lost.

10.  On 6 October 1981, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for an upgrade.

11.  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 states 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.

	b.  Paragraph 3-7b states 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 request for an upgrade of his character of service from under other than honorable conditions to honorable was carefully considered.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  His record contains a history of AWOL.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for upgrading his discharge characterization in this case.

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)                                         AR20140014349





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ABCMR Record of Proceedings (cont)                                         AR20140014349



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