IN THE CASE OF:	  

		BOARD DATE:	 26 May 2015 

		DOCKET NUMBER:  AR20140016662 


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 his under other than honorable conditions characterization of service be upgraded to honorable.

2.  The applicant states he believes he is a better person now.  He is 30 years older and requesting a second chance.  At the time of his discharge, he was trying to save a 2-year marriage.  He has never remarried.  He hopes the Board will consider an upgrade of his discharge; he has lived with this discharge for over 30 years now and has never been in any trouble.  He would like to have the disgrace of this discharge upgraded.   He feels that he has proven his is a better person over the past 30 years and does not deserve to be disgraced by this unflattering discharge.

3.  The applicant provides a character reference letter, dated 18 January 2003.

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 Army National Guard (ARNG) on 8 September 1977.  He was ordered to active duty on 18 October 1979.  He held military occupational specialty 11B (Infantryman) and the highest rank/grade he attained was private (PV2)/E-2.

3.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 6 May 1980, which shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 17 March 1980 and 21 March 1980.

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) for a period of 74 days from 22 May 1980 to 
22 July 1980.

5.  His record contains a DD Form 458 (Charge Sheet), dated 23 July 1980, which shows court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 22 May 1980 to on or about 23 July 1980.

6.  His record contains a report of mental status evaluation, dated 24 July 1980, wherein a psychiatrist indicated his behavior was normal, he was fully alert and oriented, his mood was level, his thought process clear, his though content normal, and his memory was good.  The psychiatrist also indicated he was mentally responsible, able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings, and he met the prescribed retention standards.  The examining psychiatrist also indicated he found no significant mental illness present.

7.  On 25 July 1980, he voluntarily requested discharge for the good of the service 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.  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 his request by 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.

	a.  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.

	b.  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.

8.  The separation authority approved his request for discharge on 28 August 1980, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, and directed he receive an under other than honorable conditions discharge.

9.  Accordingly, he was discharged on 17 September 1980.  His DD Form 214 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 8 months and 16 days of net
ac tive service this period with 62 days of time lost from 22 May 1980 to 22 July 1980.

10.  There is no indication he applied to the Army Discharge Review Board to request an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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 characterization 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 having been advised by 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.  Further, his discharge accurately reflects his overall record of service.

3.  His record contains a history of violations of the UCMJ and lost time resulting from incidents 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 characterization of service 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)                                         AR20140016662





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016662



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1