BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140015385 


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 an honorable discharge.

2.  The applicant states:

* he was only a kid when he enlisted and he did so primarily to get away from an abusive father
* he had no direction and he was wanting that from the U.S. Armed Forces
* since his discharge he has successfully operated five separate businesses, facilitated numerous disabled persons in getting their disability compensation, served as mayor in a small town, and served as a bishop in a Mormon church
* although he is disabled, he still helps others by providing service animals to those who need them
* he offers military and law enforcement discounts because of his short military service
* he is a completely different person since his discharge and he believes his service record should reflect his post service accomplishments
* his DD Form 214 (Report of Separation from Active Duty) does not show a reason for his discharge under other than honorable conditions

3.  The applicant provides copies of his DD Form 214 and his discharge certificate.


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 1 September 1976 at age 18.

3.  The applicant's official military personnel file contains a DA Form 3835 (Notice of Unauthorized Absence from United States Army) dated 16 January 1978.  It shows the applicant went absent without leave (AWOL) on 28 January 1977 and he remained absent in desertion until he returned to military control on 30 December 1977.

4.  The facts and circumstances pertaining to the applicant's discharge are not available for review.  His service record DD Form 214 shows he was discharged on 1 February 1978, 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 completed 5 months and 26 days of net active service this period.  He had 335 days of lost time due to AWOL.

5.  A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statutory limit.

6.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service and that the Soldier was admitting guilt of the charge(s) against him, or of a lesser included offense that was also authorized the imposition of a bad conduct or dishonorable discharge.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged; the type of discharge normally given under the provisions of this chapter, the loss of both Federal and state veteran's benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to a Soldier who was discharged for the good of the service.

	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.

7.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, his records show he had 335 days of lost time due to AWOL and he served only 5 months and 26 days of net active service.  

2.  His extended period of AWOL is an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's claimed post-service accomplishments are duly noted. Though he entered the Army at age 18, his youth and/or immaturity are not a sufficient justification for upgrading his discharge nor are his post-service accomplishments.  Further, the applicant’s discharge accurately reflects his overall record of service.  

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  While the applicant's copy of his DD Form 214 does not show the authority and reason for his separation, his record of indiscipline does support a discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trail by court-martial.  

5.  In view of the foregoing, his request should be denied.

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)                                         AR20140015385



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140015385



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1