IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140017356 


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, that his undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was due to be deployed back to Germany, but he was having marital problems and returning to Germany was only going to escalate his problems.  He went absent without leave (AWOL) to save his marriage.  He goes on to state that he turned himself in to Fort Meade, Maryland and was told the only way he could get out of the Army and keep from going back to Germany was to accept the discharge under other than honorable conditions.  He continues by stating that he was honorably discharged from the U.S. Navy; however, the benefits he receives for that service are limited to service-connected benefits only and he desire to receive additional benefits.  

3.  The applicant provides copies of his DD 214N (Armed Forces of the United States Report of Transfer or Discharge) and his Department of Veterans Affairs (VA) Rating Decision. 

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 U.S. Navy on 27 August 1968 for a period of       2 years and served until he was honorably released from active duty on 8 May 1970 due to a reduction in authorized strength.  He had served 1 year, 8 months, and 11 days of active service.

3.  On 15 January 1975, he enlisted in the Regular Army for a period of 4 years, training as a radio teletypewriter operator and a cash enlistment bonus.  He completed basic training at Fort Leonard Wood, Missouri and advanced individual training at Fort Gordon, Georgia and he was transferred to Germany on 8 July 1975.

4.  On 25 September 1975, nonjudicial punishment was imposed against him for disobeying a lawful order and being disrespectful in language toward a noncommissioned officer.

5.  On 12 December 1975, nonjudicial punishment was imposed against him for being drunk on duty.

6.  The applicant departed his unit in a leave status for the United States in December 1975 with a return date of 13 January 1976.  He failed to return and was reported as being AWOL on 14 January 1976.  He remained absent in a desertion status until he surrendered to military authorities at Fort Meade on
2 March 1976.  Charges were preferred against him on 21 March 1976. 

7.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records show that when he returned to military control he informed officials that he did not have the funds to return to Germany, he wanted out of the Army and that he could not live with the Army.  His records also contain a duly authenticated DD Form 214 (Report of Separation from Active Duty) which shows that on 21 April 1976, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served
1 year, 1 month, and 19 days of active service and had 48 days of lost time due to being AWOL.

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

9.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

	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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.


3.  The applicant's contentions have been considered; however, they are not sufficiently mitigating to warrant relief when considering the fact that he had prior service and should have known the consequences of his actions.  He also offered a different explanation for his misconduct when returned to military control and his record of service was undistinguished at best.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying an individual for benefits from other agencies.  His service simply did not rise to the level of an honorable or a general discharge.  Accordingly, there appears to be no valid basis to approve his request for an upgrade of 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)                                         AR20140017356



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ABCMR Record of Proceedings (cont)                                         AR20140017356



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