BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140016623 


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 characterization of service from under other than honorable conditions to honorable.

2.  The applicant states his military background was good until the events that led to his discharge.  He came home on leave to find his wife had been cheating with another man in their house.  He was only 18 years old and they had just had their first child.  This was way too much for him to handle mentally and emotionally, and he was not capable of returning to duty.  He was not able to take care of his marital issues in the time he had allotted for his leave. 

3.  The applicant provides no additional evidence in support of his request.

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 21 May 1980 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  His record contains a charge sheet that shows court-martial charges were preferred against him on 28 August 1981 for being absent without leave (AWOL) from on or about 1 July 1981 to on or about 20 August 1981.

4.  His record contains a Report of Mental Status Evaluation, dated 28 August 1981, which shows the psychiatrist who evaluated him determined his behavior was normal, he was fully alert and oriented, his mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist was of the opinion that the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and that he met the applicable retention requirements.

5.  He voluntarily requested discharge for the good of the service on                     2 September 1981, 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.

	a.  He acknowledged he understood he could request discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge.  He stated he was making this request for his own free will and had not been subjected to any coercion whatsoever by any person.  He also stated he had been advised of the implications attached to his request for discharge and understood that by submitting this request he acknowledged he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He acknowledged that prior to completing his request for discharge he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses which he was charged, any relevant lesser included offenses, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; possible defenses which 
appeared to be available at the time; the maximum permissible punishment if found guilty and of the legal effect, and the significance of his suspended discharge.
	
	c.  He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He also acknowledged he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

6.  His request for discharge included a statement, dated 2 September 1981, wherein he stated he was 19 years old and had only reached the 10th grade.  He was requesting a discharge under the provisions of Army Regulation 635-200, chapter 10, because he was unable to adapt to the military and could not "take the military any longer."  Additionally, his family felt the Army was standing in the way of his married life.  He further stated he joined the Army for his family but it had only made things worse.

7.  The separation authority approved his request for discharge on 30 September 1981, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge.

8.  Accordingly, he was discharged on 21 October 1981.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and he received an under other than honorable conditions discharge.  He completed 1 year, 3 months, and 12 days of creditable active military service with 50 days of time lost.

9.  There is no indication he applied to the Army Discharge Review Board to request an upgrade of his discharge within that Boards 15 year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states 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.

	b.  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 character of service from under other than honorable conditions to honorable was carefully considered.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record contains a history of AWOL.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for upgrading his discharge to general or honorable in this case.

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)                                         AR20140016623





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ABCMR Record of Proceedings (cont)                                         AR20140016623



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