IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140016540 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant provides no statement(s) and no additional 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 the cases 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 1 June 1972.  He was awarded military occupational specialty 36C (lineman).

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for:
* 30 August 1972 – failing to go to his appointed place of duty on 26 and 28 August 1972
* 4 June 1973 – absenting himself from a headquarters formation on 23 May 1973

4.  He was promoted to pay grade E-5 on 26 December 1974.

5.  On 16 January 1975, he accepted NJP under Article 15, UCMJ, for absenting himself from his place of duty on 13 January 1975.  

6.  He was honorably discharged on 17 June 1975 for the purpose of immediate reenlistment.  He was issued a DD Form 214 (Report of Separation from Active Duty) crediting him with completing 2 years, 11 months, and 16 days. 

7.  He reenlisted in the RA on 18 June 1975. 

8.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  A DA Form 3822-R (Report of Mental Status Evaluation) which shows he underwent a mental status evaluation on 25 August 1975.  The examining medical doctor found that the applicant had no significant mental illness and he was mentally responsible and able to distinguish right from wrong and adhere to the right.

   b.  A request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations, Enlisted Separations) memorandum, dated 5 September 1975, wherein the applicant was advised of the separation authority's approval of his discharge.  

   c.  A reason for separation memorandum, dated 3 October 1975, wherein the applicant was advised the reason for his separation from active duty on 3 October 1975 was "Conduct triable by court-martial" and he was not eligible for immediate reenlistment.

   d.  A DD Form 214 which shows he was discharged in pay grade E-1 on 3 October 1975, under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under other than honorable conditions.  He was credited with completing 3 months and 16 days of active service this period.  

9.  There is no evidence he petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive an under other than honorable conditions discharge, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  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.  The applicant's record is void of the complete facts and circumstances surrounding his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 3 October 1975 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial, for what appears to be violating the UCMJ. 

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that this discharge accurately reflects his overall record of service.

3.  In view of the foregoing, there is insufficient evidence to grant his requested relief.  The Board does not grant relief based on the passage of time. 

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)                                         AR20140016540



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ABCMR Record of Proceedings (cont)                                         AR20140016540



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