IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140017781 


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 discharge to an honorable discharge.

2.  The applicant states he was suffering from the tragic death of his son who only lived four days.  He went home on leave, lost track of time, and stayed there because his spouse was very upset and he needed to comfort her.  He is in need of medical insurance.

3.  The applicant provides:

* State of Iowa Certificate of Marriage
* State of Iowa Certificate of Live Birth
* State of Iowa Certificate of Death

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 Iowa Army National Guard on 20 March 1976.

3.  On 20 July 1978, the applicant entered active service. 

4.  On 27 November 1978, court-martial charges were preferred against the applicant for absenting himself from his unit for the period 16 September to 16 November 1978. 

5.  On 28 November 1978, the applicant voluntarily, and without coercion, requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).    

6.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was advised of the implications attached to it and that if his request for discharge was accepted, he may be discharged under other than honorable conditions, and furnished an Under other than honorable Discharge Certificate.  He understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he may expect to encounter substantial prejudices in civilian life by reason of an undesirable discharge.  The applicant consulted with counsel and provided a statement in which he claimed he wanted out of the Army because the pay he received did not help him pay his bills and his spouse wanted to leave him.

7.  On 22 December 1978, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.  On 2 February 1979, the applicant was accordingly discharged.

8.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He completed 9 months and 27 days of total active military service.  

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 

10.  The applicant provides a State of Iowa Certificate of Death which shows the applicant's son died on 24 July 1976, 4 days after his birth.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under other than honorable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service at the time the applicant was discharged. 

	b.  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.

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

2.  The applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice 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.  In doing so, he waived his opportunity to appear before a court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant's service records show he was AWOL from 16 September to 16 November 1978.  He subsequently requested an administrative discharge in lieu of trial by court-martial.  While the death of the applicant's son on 24 July 1976 is tragic, it does not excuse his period of being AWOL over two years later.  Therefore, based on his record of indiscipline, the applicant's service does not merit an upgrade to 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)                                         AR20140017781



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ABCMR Record of Proceedings (cont)                                         AR20140017781



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