IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140020335 


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 to a general discharge under honorable conditions.

2.  The applicant states the Army was a great place for him to begin to experience and take on responsibilities.  However, at that time he was immature, made an error in judgment, and was absent without leave (AWOL), not realizing the consequences of his actions.  He requests an upgrade to a general discharge so he may be considered for service-connected benefits and clearances for employment reasons.

3.  The applicant provides: 

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* First Baptist Church of Guilford Vision Statement
* five character-reference letters

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's records show he enlisted in the Regular Army and entered active duty on 6 August 1984.  He was trained in and awarded military occupational specialty 16S (Man Portable Air Defense System Crewmember).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private/E-2 on 1 January 1985 and this was his highest grade he held.  Item 21 (Time Lost (Section 972, Title 10, U.S. Code)) shows he had lost time totaling 224 days during the following periods:

* 19 June 1985-17 July 1985 (29 days AWOL)
* 22 July 1985-2 February 1986 (195 days AWOL)
* 3 February 1986-8 April 1986 (65 days confinement civil authorities)

4.  On 26 February 1985, a DA Form 268 (Report of Suspension of Favorable Personnel Actions) was issued against the applicant which shows he was apprehended for wrongful possession of controlled-substance paraphernalia and public intoxication.

5.  On 14 May 1985, the unit commander issued a DA Form 4126-R (Bar to Reenlistment Certificate) against the applicant.  The reasons cited for the bar were the applicant's personal behavior of public intoxication, possession of drug paraphernalia, and writing bad checks.  He stated the applicant was unsuitable for further military service and a discredit to his unit and the U.S. Army as a result of his actions.  On 23 May 1985, the applicant acknowledged receipt of this action and elected neither to appeal the action nor to submit a statement in his own behalf.

6.  On 22 July 1985, a DA Form 268 was issued against the applicant which shows he was AWOL on 22 July 1985.  Subsequently, a DA Form 4187 (Personnel Action) was completed showing the applicant was dropped from the rolls on 21 August 1985.

7.  On 21 April 1986, a DA Form 268 was issued against the applicant showing he had been apprehended and confined by civil authorities on 3 February 1986 for civil charges.  It further shows he was returned to his unit on 10 April 1986 where he was pending trial by court martial for violation of Article 86 of the Uniform Code of Military Justice (UCMJ).

8.  The applicant's Official Military Personnel File is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a DD Form 214 which shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

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

10.  The applicant provided five character-reference letters attesting to his work performance and professional conduct during the past 2 years.

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.  When warranted, commanders were to provide a statement indicating the member was mentally defective, deranged, or abnormal.  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 Veterans Administration 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 3-7b 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 contention that his discharge should be upgraded to a general discharge and that he should be considered for service-connected benefits and clearances was carefully considered.   However, the ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants 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.

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a DD Form 214 which confirms he had accrued 224 days of lost time due to AWOL and 65 days of lost time due to civil confinement.  It further shows he was discharged for the good of the service in lieu of court martial under the provisions of Army Regulation 635-200, chapter 10, and that he received a discharge under other than honorable conditions.  This separation document carries with it a presumption of government regularity in the separation process.

3.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  He would have voluntarily requested separation from the Army in lieu of trial by court-martial and procedurally he was required to consult with defense counsel.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

4.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

5.  In view of the forgoing there is an insufficient basis for granting the applicant the 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 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)                                         AR20140020335



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ABCMR Record of Proceedings (cont)                                         AR20140020335



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