IN THE CASE OF:  	  

		BOARD DATE:  26 May 2015	  

		DOCKET NUMBER:  AR20140017543 


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 discharge be upgraded to honorable. 

2.  The applicant states:

	a.  He had to go to Tampa, FL, to care for his mother as she had breast cancer.  He was so busy with her care that he forgot to contact his unit for advice.  After he turned himself in, he spoke with a captain and was advised that he could stay in the Army and finish his time or discharge out.  He asked for 1 day to call his wife and tell her he was going to complete his tour and was told he would be given that time and the opportunity to call her.  However, he was not given the time or opportunity to call her and he was discharged unfairly.

	b.  He never requested an upgrade of his discharge before and now feels it needs to be looked at so it can help him and his family in the future.  His son was murdered by his ex-girlfriend and he wants to clear up his life for the people that are still alive today and bring him one step closer to some needed peace.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 17 May 1977 and he held military occupational specialty 13E (Cannon Fire Direction Specialist).  On 2 November 1979, he was assigned to the 2nd Battalion, 35th Field Artillery, Fort Stewart, GA.

3.  On 27 November 1979, he was reported as absent without leave (AWOL) from his assigned unit and on 26 December 1979, he was dropped from the rolls as a deserter.

4.  His record contains a DA Form 4187 (Personnel Action), dated 7 May 1980, wherein it stated the applicant was apprehended by civil authorities on 29 April 1980, in Jacksonville, FL, and detained.  On 1 May 1980, he was processed and released for transfer to Fort Bragg, NC.  He was returned to military control and assigned to the U.S. Army Personnel Control Facility, XVIII Airborne Corps and Fort Bragg.

5.  On 12 May 1980, he was placed on excess leave.

6.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains the DD Form 214 he was issued that shows he was discharged on 27 May 1980, in the rank/grade of private/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 - for conduct triable by court-martial, with an under other than honorable conditions characterization of service.  He completed 2 years, 7 months, and 9 days of net active service which included 16 days of excess leave and he had 153 days (or 5 months and 1 day) of lost time due to being AWOL.

7.  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.

8.  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 admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate 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.  A discharge under other than honorable conditions is normally considered appropriate.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing.  However, it appears he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  His claim that he was not allowed to contact his wife to let her know he decided to stay in the Army is noted; however, discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  

2.  In the absence of evidence to the contrary, it is presumed he 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 the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it is presumed his discharge accurately reflects his overall record of service.

3.  His available record shows at the time of his discharge he had over 5 months of lost time due to being AWOL.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable discharge or a general 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)                                         AR20140017543





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ABCMR Record of Proceedings (cont)                                         AR20140017543



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