IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140017963 


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, an upgrade of his under other than honorable conditions discharge.  

2.  The applicant states, in effect, that he went absent without leave (AWOL) due to the fact that his chain of command failed to help him start an allotment to provide for his wife and children.  

3.  The applicant provides no additional evidence.

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.  On 19 October 1972, the applicant enlisted in the Regular Army for a period of 3 years.  He completed basic training but never completed advanced individual training and as a result, he was not awarded a military occupational specialty.  

3.  On 10 January 1973, he accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from his unit from on or about 4 December 1972 through 7 January 1973.  
4.  Item 45 (Remarks) of his DA Form 20 (Enlisted Qualification Record) shows he had lost time during the periods:

* 4 December 1972 to 6 January 1973, 34 days, Article 15
* 13 March to 10 December 1973, 273 days, AWOL
* 27 December 1973 to 18 October 1975, 660 days, AWOL
* 19 October 1975 to 3 May 1976, 197 days, AWOL after expiration of term of service (ETS)
* 4 to 9 May 1976, 6 days, imprisonment
* 12 May 1976, PT (Personnel Control Facility)

5.  His records are void of a separation packet containing the specific facts and circumstances surrounding his discharge process.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) which identifies the authority and reason for his discharge.

6.  His DD Form 214 (Report of Separation from Active Duty) shows, on 21 July 1976, he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial, with his service characterized as under other than honorable conditions and with an Undesirable Discharge Certificate.  He was discharged in the rank/grade of private/E-1.  He completed 1 year, 3 months, and 13 days of total active service.  He also had 902 days of lost time of which 203 were lost subsequent to his ETS date.  

7.  There is no evidence in the applicant's available record that supports his contention that his chain of command failed to help him start a support allotment to provide for his wife and children.  Additionally, there are no financial records and he did not provide any financial records that show he started or attempted to start a support allotment.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 8 January 1980, the ADRB determined he was properly and equitably discharged and denied his request.

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

     a.  Chapter 10, 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, 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 Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

     b.  Paragraph 3-7a states 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 states 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 for an upgrade of his under other than honorable conditions discharge was carefully considered.   

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  It appears he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation 635-200, are voluntary requests for discharge in lieu of trial by court-martial.  

3.  The applicant is presumed to have 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.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no evidence that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment.  Absent evidence to the contrary, regularity must be presumed in this case.

4.  The applicant contends his misconduct is a result of his chain of command not helping him start an allotment to care for his wife and children.  However, there is no evidence in his records nor does he provide any evidence that shows his command failed to provide assistance in this matter.  

5.  His record shows he was AWOL on multiple occasions and had a total of 902 days of lost time; therefore, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant his requested relief.  

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)                                         AR20140010159



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ABCMR Record of Proceedings (cont)                                         AR20140017963



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