IN THE CASE OF:  	  

		BOARD DATE:  21 April 2015  	  

		DOCKET NUMBER:  AR20140016022 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect:

* he was young, immature, and a drug addict at the time of his discharge
* he had gone absent without leave (AWOL) chasing after a girl; it was one of the worst mistakes of his life
* he was told if he wanted to go home all he had to do was sign some papers that he did not really understand
* he understood his alternative was to go to the stockade and he was scared to death
* he has been clean for over 30 years and to this day he regrets leaving the Army

3.  The applicant provides no additional documentary evidence.

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 December 1977 at age 18.  After completing initial training, he was awarded military occupational specialty 55B (Ammunition Specialist).  The highest rank/grade held was private/E-2.

3.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  On 1 March 1979, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for one specification of failing to report to his appointed place of duty (failure to repair).  His punishment included a suspended reduction in rank/grade to private/E-1 and forfeiture of $46.00.  This suspension was vacated and duly executed on 16 March 1979.

5.  Available records show the applicant left his assigned unit at Fort Ord, CA in an AWOL status on 29 March 1979.  He returned to military control on 26 April 1979 and was returned to his unit at Fort Ord, CA.

6.  On 7 May 1979, the applicant's commander preferred court-martial charges for his period of AWOL, as well as for one specification for failure to repair, one specification of willfully disobeying the order of a superior noncommissioned officer, and for willfully failing to remain on post and remain awake while on guard.

7.  On 17 May 1979, the applicant consulted with counsel, a military attorney, and, subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

8.  In his request for discharge, he indicated he:

* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person 
* acknowledged he understood the elements of the offense charged and was guilty of that charge or of a lesser-included offense which could also authorize a bad conduct or dishonorable discharge
* understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected to submit a statement in his own behalf (his statement is not available in his record)

9.  On 18 May 1979, the separation authority approved his request for discharge in lieu of court-martial with the issuance of an under other than honorable discharge.  He was also reduced to the lowest enlisted rank.  On 29 May 1979, he was discharged accordingly.

10.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions in accordance with the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He completed 1 year, 5 months, and 1 day of net active creditable service with 28 days of lost time.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  

	b.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

	c.  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 under other than honorable conditions discharge was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army 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.

3.  The applicant points out he was young and immature at the time of his discharge.  Records show he was 18 years of age at the time of his enlistment and 20 years of age at the time of his discharge.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Accordingly, there is an insufficient basis upon which to grant the applicant's request for relief.

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)                                         AR20140016022



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ABCMR Record of Proceedings (cont)                                         AR20140016022



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