IN THE CASE OF:	  

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140015485 


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 that his discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that his discharge was the result of his youth, inexperience and not seeking wise counsel.  He goes on to state that he was allowed to go home due to the death of his grandfather who raised him and did not return to his unit because he had gotten into drugs and he knew if he returned his addiction would become greater so he remained stateside to get himself clean.  He also states that he did get clean and remained so until the mid 1980s when he again had issues and paid the price.  He further states that he had a clean record until he went absent without leave (AWOL) and that he has become an outstanding citizen of his community. 

3.  The applicant provides a two-page letter explaining his application and a copy of his DD Form 214 (Report of Separation from Active Duty).

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 3 February 1976 for a period of 4 years, training as an infantryman and assignment to Europe.  He completed basic training at Fort Jackson, South Carolina and advanced individual training at Fort Benning, Georgia before being transferred to Germany on 13 June 1976.  He was advanced to the pay grade of E-4 on 1 September 1977.

3.  In January 1978, while on leave, the applicant got married.  He returned to his unit in Germany and on 26 July 1978, he returned to the continental United States due to the death of his grandfather who had raised him.  He did not return from leave and he was reported as being AWOL effective 25 August 1978.  He remained absent until he returned to military control at Fort Bragg, North Carolina on 12 September 1978 and he was directed to return to his unit in Germany.  He instead went AWOL on 16 September 1978 and remained absent in a desertion status until he surrendered to military authorities at Fort Bragg on 22 January 1979 where charges were preferred against the applicant for two periods of AWOL and disobeying a lawful order to return to his unit.  

4.  On 24 January 1979, after consulting with defense counsel, the applicant submitted a request for discharge 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.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

5.  The commander of the Personnel Control Facility interviewed the applicant and the applicant told him that his wife was running around on him, that he was getting a divorce, that his mother was ill and needed him at home, and that he desired to be discharged with a less than an honorable discharge.  The commander recommended approval of the applicant’s request. 

6.  On 21 February 1979, the appropriate authority approved his request for discharge and directed the applicant be given an under other than honorable conditions discharge. 
7.  On 28 February 1979, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 2 years, 8 months, and 2 days of active service and had 144 days of lost time due to being AWOL.

8.  On 30 June 1981, he applied to the Army Discharge Review Board requesting an upgrade of his discharge to fully honorable due to the fact that his AWOL was caused by family problems which consisted of losing his grandfather and wife.  After reviewing the fact s and circumstances in his case, the board found that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge on 17 March 1982.

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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances and he was properly reduced to the pay grade of E-1.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the length of his absences and his otherwise undistinguished record of service. 

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or 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 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)                                         AR20140015485



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ABCMR Record of Proceedings (cont)                                         AR20140015485



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