IN THE CASE OF:	  

		BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140018416 


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 discharge under other than honorable conditions.

2.  The applicant states:

* he was an alcoholic during his military service
* his record speaks for itself
* he is now a recovering alcoholic and requires assistance
* he is on a waiting list for shelter and being drug free is required to stay at the shelter

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.  The applicant enlisted in the Regular Army on 23 January 1973.  He was honorably discharged on 30 January 1975 for immediate reenlistment.  He reenlisted on 31 January 1975.

3.  On 11 March 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing an undetermined amount of marijuana on or about 28 February 1975 at U.S. Army Garrison Yongsan, Korea.

4.  On 23 January 1976, he accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty at the prescribed time on or about 19 January 1976.

5.  His records contain DA Forms 4187 (Personnel Action) showing his duty status changes as follows:

* on 16 July 1976 – from present for duty to absent without leave (AWOL)
* on 20 July 1976 – from AWOL to present for duty
* on 27 July 1976 – from present for duty to AWOL
* on 30 July 1976 – from AWOL to confinement by military authorities
* on 3 August 1976 – from confinement by military authorities to present for duty

6.  Section IV (Remarks) of his DA Form 4187, dated 28 July 1976, shows he was previously AWOL and had action pending under the UCMJ.  He was AWOL to avoid punishment and stated he did not intend to return to military control.

7.  On 30 July 1976, charges were preferred against him for being AWOL on or about 16 July 1976 until on or about 20 July 1976 and on or about 27 July 1976 until on or about 30 July 1976.

8.  On 29 October 1976, charges were preferred against him for being AWOL on or about 16 August 1976 until on or 29 October 1976.

9.  His Standard Form 88 (Report of Medical Examination), dated 2 November 1976, shows he indicated he was in "good health."  He was deemed qualified for release from active duty.  On 8 November 1976, the results and a review of his 2 November 1976 medical examination were completed.  He was again found qualified for release from active duty.

10.  On 10 November 1976 after consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He admitted he was guilty of the charges against him.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He submitted a statement in his own behalf stating:

* he did not want to go back to duty for any reason at all and he did not want to have anything to do with the Army
* he understood all of the benefits he was going to give up
* he understood what an undesirable discharge was all about
* he preferred a discharge under chapter 10

11.  On 10 November, his immediate and intermediate commanders recommended approval of his request with the issuance of an Undesirable Discharge Certificate.

12.  On 18 November 1976, his senior commander recommended approval of the applicant's discharge and the issuance of an Undesirable Discharge Certificate.

13.  On 18 November 1976, the applicant underwent a mental health status evaluation in which he was found to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, and able to understand and participate in board proceedings.

14.  The separation authority's approval memorandum is not contained in the applicant's available records.

15.  On 29 December 1976, he was discharged under other than honorable conditions and issued an Undesirable Discharge Certificate.  His DD Form 214 (Report of Separation from Active Duty) for this period shows he accrued 86 days of lost time.

16.  His records are void of and he failed to provide any evidence showing he suffered from alcohol dependency or was treated for alcoholism.

17.  On 28 September 1978, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

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

	a.  Chapter 10 provides that a member who 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.

	b.  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.  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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily admitted to being AWOL and elected to be discharged.  His records show he was well advised and fully aware of the consequences of his decisions.

2.  His misconduct clearly diminished the overall quality of his service during his second term of enlistment below that meriting an honorable or a general discharge.  In view of the foregoing evidence, there is no basis for granting the applicant's request.

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 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)                                         AR20140018416



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ABCMR Record of Proceedings (cont)                                         AR20140018416



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