IN THE CASE OF:	  

		BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140015766 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states just prior to discharge he was in a severe car accident which resulted in a traumatic brain injury and required him to be held in the Barksdale Medical Center, Air Force Base (AFB), Bossier City, LA.  His son was severely ill with pneumonia.  Both circumstances affected his position in the military.  He feels the character of his discharge should be upgraded because both of the circumstances were not due to willful misconduct or negligence nor resulted in a court-martial proceeding indicating dishonorable service.  At the time of his discharge he was not present to sign his DD Form 214 (Report of Separation from Active Duty).

3.  The applicant provides:

* DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States)
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 214 with an effective date of 27 November 1978
* a memorandum, dated 20 August 2014, from the Central Texas Department of Veterans Affairs (VA) Health Care System 


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.  On 10 January 1978, he enlisted in the Regular Army.  He completed basic and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  He enlisted for the airborne enlistment option with assignment to the 7th Special Forces.

3.  On 12 June 1978, he requested to be separated from active military duty immediately due to violation of his enlistment agreement.

4.  His unit commander recommended approval of his request.  The applicant contended he was not made aware of the requirements to be a high school graduate to begin the Special Forces Qualification Course.  The applicant stated he did not desire to remain in the Army until he obtained a high school diploma.  He was extensively counseled on the opportunities available to aid him in obtaining a high school diploma and the options available to him without a high school diploma.

5.  On 20 July 1978, the applicant reconsidered and requested to remain on active duty in the Army.  He was to be assigned to the 27th Engineer Battalion, 20th Engineer Brigade at Fort Bragg, NC if his request to remain in the Army was approved.

6.  On 7 August 1978, his request for withdrawal of his claim of unfulfilled reenlistment commitment was approved.

7.  On 7 September 1978, he was assigned to Company A, 27th Engineer Battalion, Fort Bragg, NC.

8.  On 12 September 1978, he went absent without leave (AWOL).  On 
25 October 1978, he surrendered to military authorities at Fort Sill, OK.
9.  On 3 November 1978, court-martial charges were preferred against the applicant for being AWOL from on or about 12 September to on or about 
25 October 1978.

10.  On 3 November 1978, he consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense for which he was charged
* making the request of his own free will
* advised he may be furnished an UOTHC Discharge Certificate
* advised he could submit statements in his own behalf

11.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an UOTHC discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

12.  He submitted a statement in his own behalf.  He stated he should receive a discharge better than an UOTHC discharge because he had a breach of contract.  After waiting 3 months for his discharge he left.  He had a lot of things on his mind besides the Army's errors.  He didn't feel like waiting another 3 days much less 1 month for a discharge that wasn't his fault.  If the reasons were not good enough he wanted any discharge he could receive from the Army.

13.  The applicant requested to be placed on excess leave without pay and allowances.  His request was approved and he departed on excess leave on 
3 November 1978.

14.  On 17 November 1978, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an UOTHC discharge.

15.  On 27 November 1978, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Enlisted Personnel Separations) due to conduct triable by court martial.  He had completed 4 months and 6 days of net active service that was characterized as UOTHC.  He had 43 days of time lost.
16.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he was in a severe car accident which resulted in a traumatic brain injury that required him to be held in the Barksdale Medical Center, AFB, Bossier City, LA.  In addition, he contends his son was severely ill with pneumonia.  However, he provided no evidence to support his contentions.

2.  In his statement at the time of his request for discharge the applicant did not mention either a severe car accident or his son's illness.  In this statement he stated the Army was in breach of contract and after waiting 3 months for his discharge he left.  However, the record shows he had requested to be discharged due to a breach of contract but withdrew his request a month later.  Therefore, his contention is not supported by the evidence.

3.  He contends the character of his discharge should be upgraded because both of the circumstances were not due to willful misconduct or negligence nor resulted in a court-martial proceeding indicating dishonorable service.  However, the charge of AWOL is considered willful misconduct.  The charges did not result in court-martial proceedings because he requested a discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid trial by court-martial.  

4.  He contends he wasn't present at the time of his discharge to sign his 
DD Form 214.  This was due to his having requested and approved placement on excess leave.  He was placed on excess leave on 3 November 1978.

5.  The applicant's voluntary request for discharge under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of this case.  The issuance of an UOTHC discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights. 

7.  He went AWOL only 5 days after reporting to his first permanent duty assignment.  He had 43 days of time lost.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his UOTHC discharge to either 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)                                         AR20140015766



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ABCMR Record of Proceedings (cont)                                         AR20140015766



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