IN THE CASE OF:	  

		BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140017572 


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 was young and naïve; he did not fully understand the implications of his decision at the time
* he received an honorable discharge after fulfilling his first enlistment; he then screwed up when he came home during his second enlistment
* he got his girlfriend pregnant and freaked out about the situation and/or how to handle it
* he has a service-connection claim with the Department of Veterans Affairs and the characterization of service affects his eligibility and benefits 

3.  The applicant provides his DD Forms 214 (Report of Separation from Active Duty) for periods ending 13 May 1977 and 28 July 1976.

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's records show he enlisted in the Regular Army for a 3-year term on 1 July 1973 at 18 years of age. He was trained in and held military occupational specialty 63B (Wheel Vehicle Mechanic).  He served in Korea from 18 December 1973 to 13 December 1974. 

3.  He was honorably discharged on 28 July 1976 for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows he completed 2 years, 11 months, and 28 days of active service.  He was awarded or authorized the: 

* National Defense Service Medal
* Armed Forces Expeditionary Medal 

4.  The applicant reenlisted in the Regular Army for a 3-year term on 29 July 1976.  He was 21 years of age at the time and holding the rank/grade of specialist four/E-4.  

5.  On 5 September 1976, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 11 September 1976.  

6.  On 20 September 1976, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 5 to 11 September 1976. 

7.  On 1 December 1976, he again departed his unit in an AWOL status and on 30 December 1976 he was dropped from the Army rolls as a deserter.  He was apprehended and returned to military control on 11 April 1977.

8.  Subsequent to his return, on 29 April 1977, court-martial charges were preferred against him for one specification of being AWOL from 1 December 1976 to 8 April 1977. 

9.  On 28 April 1977, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a 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.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected not to submit a statement on his own behalf

10.  On 5 May 1977, his immediate and intermediate commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

11.  On 6 May 1977, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  

12.  On 13 May 1977, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service, in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 5 months and 4 days during this period of service and he had 134 days of lost time. 

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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, an under other than honorable conditions discharge is normally considered appropriate.

	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 that his under other than honorable conditions discharge be upgraded was carefully considered; however, there is insufficient evidence to support his request.

2.  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.  The applicant voluntarily, willingly, and in writing requested discharge from the Army 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.  With respect to his arguments:

	a.  The applicant was 18 years of age at the time of his enlistment and 20 years of age at the time of his reenlistment and offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

	b.  Nothing in the applicant's record shows he was forced to choose the discharge.  He went AWOL by choice.  When presented with his options, he willingly chose the discharge.  The fact that this characterization of service affects his benefits is a natural consequence of his actions.  

4.  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 also renders his service subsequent to reenlistment unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge to either an honorable 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)                                         AR20140017572



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017572



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1