IN THE CASE OF:  	

		BOARD DATE:  21 May 2015	  

		DOCKET NUMBER:  AR20140016891


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, in effect, an upgrade of his under other than honorable conditions discharge.  

2.  The applicant states he had a bad lawyer.    

3.  The applicant provides a letter of reference, a Certificate of Military Service from the American Legion, a pamphlet from the Patriot Guard Riders of Ohio, a copy of his DD Form 258A (Undesirable Discharge Certificate), and an email addressed to a member of the State of Ohio Department of Veterans Services.  

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 28 April 1972.  After completing his initial military training, he was awarded military occupational specialty 13A (Field Artillery Basic).  The highest rank/grade held was private first class/E-3.

3.  His records contain a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 29 January 1974, which shows he was absent without leave (AWOL) from his unit starting on 17 September 1973.  He surrendered to military authorities on 8 January 1974.

4.  His records contain a DA Form 3822-R (Report of Mental Status Evaluation), dated 21 January 1974, wherein it states he was clear in thinking with normal thought content, mentally responsible with no significant mental illness, able to distinguish right from wrong, and had the mental capacity to understand and participate in board proceedings.

5.  His records contain a DA Form 20 (Enlisted Qualification Record), which shows in item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) he had 113 days of lost time by reason of being AWOL from 17 September 1973 to 7 January 1974.  

6.  His records are void of a complete separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, his records contain an extract from Special Order 39, issued by Headquarters XVIII Airborne Corps and Fort Bragg, NC, dated 26 February 1974, which shows he was discharged for the good of the service and he was given an under other than honorable conditions discharge.  

7.  He was discharged on 26 February 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 10-1.  His DD Form 214 confirms he was discharged in the lowest enlisted grade and he received an under other than honorable conditions character of service.  Item 21 (Remarks) shows the entry "113 days lost under 10 USC 972."

8.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 13 November 1979.  

9.  He provides the following in support of his application:

     a.  A letter of reference from the Ohio Patriot Guard Rider District #2 Captain, which states, in effect, that while he does not know the particulars about the applicant's discharge, he can vouch for the fact that the applicant is very involved and dedicated in providing assistance to taking care of our fallen Veterans and their Families at memorial services in the north central portion of the state of Ohio.  

     b.  A Certificate of Military Service from the American Legion for his service to the United States of America.

     c.  DD Form 258A (Undesirable Discharge Certificate) showing he was discharged on 26 February 1974.  

     d.  An email addressed to a Mr. G.I., State of Ohio Department of Veterans Services, which states, in effect, that he would like to get his discharge changed.  It also states his sergeant had gone AWOL and he asked if he could go and talk him into coming back to the unit.  He said he thought he was given permission but when he came back he was counted as having gone AWOL.  The email also addresses the effort and enjoyment he receives in working as a Patriot Guard member.

10.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred and must include the individual's admission of guilt.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service.

	a.  Paragraph 3-7a provides that 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 provides that 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.

2.  His records are void of the specific facts and circumstances surrounding his discharge.  However, his records show he was AWOL for a total of 113 days, an offense punishable under the Uniform Code of Military Justice (UCMJ).   Based on his records, it appears he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed the character of his discharge accurately reflects his overall record of service.

4.  The applicant failed to show that his discharge and/or the character of service he received were in error or unjust.  As a result, there is no basis for granting him an upgrade to his 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)                                         AR20140009282



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ABCMR Record of Proceedings (cont)                                         AR20140016891



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