BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140020051


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.  Additionally, he requests a copy of his discharge document.

2.  The applicant states he was lead to believe he had a hardship.

3.  The applicant provided no additional evidence in support of his request.

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 27 September 1978.  His record shows he did not complete his initial entry training and was not awarded a military occupational specialty.
3.  Court-martial charges were preferred against him on 16 August 1979, for being absent without leave (AWOL) from on or about 17 March 1979 through on or about 1 August 1979.

4.  He consulted with legal counsel on 17 August 1979 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

5.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected to submit a statement on his own behalf, wherein he stated:

* he was 20 years old and had completed 12 years of school
* he joined the Army because he had recently gotten married and he couldn't find a job
* after he joined the Army, his father turned over the family business to him
* his military occupational specialty involved automotive repair, but he got TVM [sic, unknown]
* he requested a chapter 10 discharge because it was the quickest was to get out of the Army
* he wanted out of the Army because he had too many family problems

6.  The separation authority approved his request for discharge on 30 August 1979 and directed his reduction to the lowest enlisted grade and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

7.  He was discharged accordingly on 25 September 1979.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and his character of service was determined to be under other than honorable conditions.  He had 137 days of lost time.  
8.  His record is void of any documentation that shows he requested a hardship discharge, or that shows his circumstances at the time were of such a compelling nature that they warranted his separation by a hardship discharge.

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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   a. 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 clearly be inappropriate.

   b. 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 for discharge upgrade was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant contends his discharge resulted from a hardship; however, the evidence of record does not support this contention.  His record shows he was AWOL from on or about 17 March 1979 through on or about 1 August 1979.  This AWOL period resulted in court-martial charges.  Instead of facing a trial by court-martial, he elected to request discharge in lieu of trial by court-martial.  

3.  His record shows he 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.

4.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors that would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

5.  Based on his extended period of lost time, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20140020051



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