BOARD DATE:	 11 June 2015 

		DOCKET NUMBER:  AR20140018806 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he wants his discharge upgraded to honorable.  He served his country and he made a mistake.  He is now a citizen living a Christian life.  He is getting older and he needs the medical and other assistance that he feels he is due.  

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 (RA) on 11 November 1975 and he held military occupational specialty 76D (Materiel Supply Specialist).  On 6 November 1978, he was honorably discharged for the purpose of immediate reenlistment.

3.  On 7 November 1978, he reenlisted in the RA.  On 31 October 1978, he was assigned to Company C, U.S. Army Armor Center and Fort Knox, Fort Knox, KY.

4.  On 9 January 1979, he was reported as absent without leave (AWOL) from his assigned unit.  On 10 January 1979, he returned to military control at Fort Knox, KY.

5.  On 9 February 1979, he was assigned to Company D, 75th Support Battalion, Fort Knox, KY. 

6.  On 12 February 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 9 to 10 January 1979 and for disobeying a lawful order.

7.  On 2 July 1979, he was assigned to 4th Squadron, 7th Cavalry, 2nd Infantry Division (ID), Korea.  On 18 July 1979, he was reported as AWOL from his assigned unit.  On 16 August 1979, he was dropped from the rolls as a deserter.

8.  On 11 September 1979, he was returned to military control and assigned to 4th Squadron, 7th Cavalry, Korea.

9.  On 27 November 1979, court-martial charges were preferred against him for one specification each of:

* being AWOL from 18 July to 11 September 1979
* wrongfully purchasing from various post exchanges in Korea in July 1979 excess quantities of rationed merchandise to include food, cigarettes, and liquor 
* wrongfully purchasing from various post exchanges in Korea in August 1979 excess quantities of rationed merchandise to include food, cigarettes, and liquor

10.  He was subsequently reported as AWOL from his assigned unit from 20 to 21 January 1980.  

11.  On 12 February 1980, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or 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.

12.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  

13.  In a statement he submitted in his own behalf, he stated the reason he felt he should be given a chapter 10 discharge is because he reenlisted in October 1978 for assignment to the 19th Support Command, Korea, and a special duty assignment.  However, although he told the personnel at the replacement center that he reenlisted for the 19th Support Command, he was sent to the 2nd ID.

14.  On 13 February 1980, 14 February 1980, and 15 February 1980, respectively, his immediate, intermediate, and senior commanders all recommended disapproval of his request for a chapter 10 discharge as the nature of his offenses warranted a trial by court-martial.  

15.  On 19 February 1980, the separation authority approved his request for a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 12 March 1980, he was discharged accordingly.

16.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 1 year, 4 months, and 6 days of net active service during this period of service and had 56 days of lost time due to being AWOL.

17.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  An under other than honorable conditions discharge was normally considered appropriate.

19.  Army Regulation 635-200, 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.

20.  Army Regulation 635-200, 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 evidence of record confirms 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. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge 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)                                         AR20140018806





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ABCMR Record of Proceedings (cont)                                         AR20140018806



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