IN THE CASE OF:	   

		BOARD DATE:	 14 May 2015 

		DOCKET NUMBER:  AR20140017322 


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.

2.  The applicant states he needs his discharge upgraded to receive vision and dental benefits. 

3.  The applicant provides 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 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 2 October 1980 and he held military occupational specialty 19D (Cavalry Scout).  On 2 March 1981, he was assigned to the 2nd Battalion, 87th Infantry Regiment, Germany.
3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 26 June 1981, for failing to go at the prescribed time to his appointed place of duty
* 17 November 1981, for wrongfully appropriating a field jacket, the property of another Soldier
* 14 January 1982, for failing to settle his debt to the city of Mainz, Germany
* 31 March 1982, for being absent without leave (AWOL) from his assigned unit from 1 to 8 February 1982
* 2 July 1982, for wrongfully possessing marijuana in the hashish form and for wrongfully using marijuana in the hashish form

4.  In addition to 1 to 8 February 1982, he was reported as AWOL from his assigned unit from 14 to 15 April 1982 and from 9 to 19 November 1982. 

5.  On 24 November 1982, he was reported as AWOL from his assigned unit and on 23 December 1982 he was dropped from the rolls as a deserter.

6.  On 10 January 1983, the applicant surrendered to military authorities at Fort Sheridan, IL, and was subsequently assigned to the U.S. Army Personnel Control Facility, Fort Knox, KY.

7.  On 12 January 1983, court-martial charges were preferred against him for being AWOL from 24 November 1982 to 10 January 1983 (48 days).

8.  On 12 January 1983, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge 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.

9.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  He further stated that he knowingly, willingly, and voluntarily declared that he had been AWOL from 24 November 1982 to 10 January 1983.  He declined to submit a statement in his own behalf.

10.  On 14 January 1983, he was placed on excess leave pending the processing of his request for a discharge.

11.  On 25 January 1983, his immediate and senior commanders recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

12.  On 7 February 1983, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 4 March 1983, he was discharged accordingly.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 2 years, 2 months, and 27 days of net active service of which 50 days was excess leave and he had 68 days (or 2 months and 8 days) of lost time due to being AWOL.

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

15.  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 included 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.  An under other than honorable conditions discharge was normally considered appropriate.

16.  Army Regulation 635-200, 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.

17.  Army Regulation 635-200, 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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for medical or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140017322





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ABCMR Record of Proceedings (cont)                                         AR20140017322



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