IN THE CASE OF:  	  

		BOARD DATE:  31 March 2015	  

		DOCKET NUMBER:  AR20140014622 


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 honorable conditions.

2.  He states he was very immature when he enlisted and had a hard time adjusting to military life.  He adds that since his discharge, he has been a productive member of society and he has worked as a peace officer in the State of California where he was honorably retired with 23 years of service.  

3.  He provides his DD Form 214 (Report of Separation from Active Duty) and retirement documents from the State of California Department of Corrections and Rehabilitation.

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 (RA) on 7 July 1977 at the age of 17 years and 9 months.

3.  The completed charge sheet and all of the facts and circumstances pertaining to his discharge proceedings in lieu of a trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), are not contained in his available military records.

4.  However, his records contain a charge sheet, dated 17 November 1978, that shows charges were preferred against him for being absent without leave on two separate occasions:  16 August to 12 September 1978 and 30 October 1978, but his return date is not listed.  

5.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows he went AWOL on 20 September 1978 and returned to military control on 29 January 1979. 

6.  His DD Form 214 shows he was discharged on 28 February 1979, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of a trial by court-martial with an under other than honorable conditions character of service.  It also shows he completed 1 year, 2 months, and 10 days of total active service with lost time from:  5 to 8 January 1978; 16 August to
11 September 1978; and 20 September 1978 to 28 January 1979.

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

8.  The applicant provided documents from the State of California Department of Corrections and Rehabilitation that show he retired as a peace officer effective October 2009.

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 3-7a 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.

	c.  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 available evidence shows the applicant was 17 years and 9 months old at the time he enlisted in the RA and 19 years and 5 months old at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  The fact that the applicant was honorably retired as a peace officer with
23 years of service is commendable; however, good post-service conduct alone is not normally a basis for upgrading a discharge.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there are mitigating circumstances which warrants the upgrade.

3.  His record is void of the specific facts and circumstances surrounding his discharge action.  However, it appears he was charged with two specifications of AWOL punishable under the Uniform Code of Military Justice with a punitive discharge.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20140014622



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ABCMR Record of Proceedings (cont)                                         AR20140014622



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