BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140017778 


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 (UOTHC) discharge.

2.  The applicant states, in effect, there were family problems and no one in his family would tell him anything.  He had a family emergency and he was denied leave.  He lost it, so he left the Army and did not return.  He needs an honorable discharge to receive assistance from the Department of Veterans Affairs (VA).  He can't receive any assistance without the Board's help.

3.  The applicant provides copies of the following:

* VA Form 21-4138 (Statement in Support of Claim)
* DD Form 4 (Enlistment Contract – Armed Forces of the United States) (page 2)
* DD Form 214 (Report of Separation from Active Duty) ending on 3 March 1977

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Delaware Army National Guard (DEARNG), in pay grade E-1, on 25 March 1976, for 6 years.  He was ordered to and entered active duty for training (ADT) on the same day.  He completed training and was awarded military occupational specialty 11B (infantryman).  

3.  He was honorably released from ADT on 3 March 1977 and was transferred to the DEARNG.  He was issued a DD Form 214 crediting him with completing 9 months and 11 days of active service.

4.  On 31 August 1978, he was notified at his home of record (HOR) by the DEARNG of summary court-martial charges being preferred against him for being absent without leave (AWOL) on 29 August 1978.

5.  In a DA Form 2496-1 (Disposition Form), dated 15 February 1979, the Commander, Signal Corps, DEARNG, advised the applicant that the applicant's unit commander had stated the applicant had accumulated four (4) periods of Unsatisfactory Participation.  One (1) more period of Unsatisfactory Participation would subject the applicant to be ordered to involuntary AD.

6.  In a Notice of Unsatisfactory Participation and Right to Appeal (Involuntary AD) (ADT) memorandum, dated 6 March 1979, he was advised of being charged with seven (7) unexcused absences within a one-year period and therefore he would be involuntarily ordered to AD for 24 months.  He was also advised of his rights.

7.  In a DA Form 2496-1, dated 2 April 1979, the Unit Commander, Signal Corps, DEARNG, ordered the applicant be processed for involuntary AD.  In a statement, the unit commander stated the following:

   a.  The applicant signed a statement on 25 April 1978 that he had been oriented and understood the satisfactory participation and the enforcement procedures as outlined in Army Regulation 135-91 (ARNG and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).

   b.  On 20 August 1978, 18 November 1978, and from 10 to 11 February 1979, the applicant did absent himself from unit training assembling without proper authority.  The applicant was contacted in person by Staff Sergeant Pxxxx of the unit to inquire if any cogent or emergency reason existed which prevented the applicant from attending.  Also letters of instructions were mailed to the applicant's HOR and were returned "Unclaimed."

8.  Orders Number 155-3, issued by The Adjutant General, DEARNG on 5 October 1979, discharged him from the DEARNG, in pay grade E-2, effective 12 November 1979, with a general discharge.  The orders show he was to ultimately be assigned to AD.  He was issued a National Guard Bureau Form 22 crediting him with completing 3 years, 7 months, and 18 days of net service.

9.  He entered involuntary AD on 13 November 1979.

10.  On 31 January 1980, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 13 November 1979 through 21 January 1980.  His punishment included a suspended reduction to pay grade E-1, a forfeiture of $224.00 pay per month for two months, and 30 days of correctional custody.  He did not appeal.

11.  On 18 July 1980, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Lewis, WA.  The applicant was charged with two specifications each of being AWOL from 17 through 22 May 1980 and from 23 May through 15 July 1980.  On the same day court-martial charges were preferred against the applicant.

12.  On 23 July 1980, after consulting with counsel, the applicant admitted he was knowingly, willingly, and voluntarily AWOL.  He requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged that he could be discharged UOTHC and furnished an UOTHC Discharge Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.  

13.  On 31 July 1980, the separation authority approved the applicant’s request and directed the issuance of an UOTHC discharge and reduction to pay  grade E-1.

14.  He was discharged accordingly on 15 August 1980.  He was credited with completing 4 months and 26 days of active service and time lost from 13 November 1979 through 20 January 1980, 17 through 21 May 1980, and 23 May through 14 July 1980.  His service was characterized as UOTHC.
15.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  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 was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation       635-200 are voluntary requests for discharge in lieu by court-martial.  He acknowledged the reason for his discharge and that he could be furnished an UOTHC Discharge Certificate.  He waived his rights and elected not to submit a statement in his own behalf.    

2.  He provided no evidence or a convincing argument to show his 1980 UOTHC discharge should be upgraded and his available military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct of lengthy periods of AWOL during his period of involuntary AD as a result of unsatisfactory participation in the DEARNG for being AWOL diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, it appears his 1980 administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

4.  The ABCMR does not correct records solely for the purpose of establishing entitlements to medical or any other benefits administered by the VA.

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)                                         AR20140017778





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ABCMR Record of Proceedings (cont)                                         AR20140017778



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