IN THE CASE OF:	   

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20140020822 


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 does not know what the conditions were for his discharge but he knows they were unfair.  He found out the Department of Veterans Affairs needs his discharge upgraded before he can get benefits.  He is trying to get benefits for a service-connected injury.  His conduct went downhill at the time because of depression and he would do things without thinking.  That is what caused his absence without leave (AWOL).  He has been suffering for a long time. 

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 service records are not available for review with this case.  An extensive search was conducted to locate his records but they could not be found.  However, the applicant provides his DD Form 214 which is sufficient for the Board to conduct a fair and impartial review of his case.

3.  The applicant's DD Form 214 shows he entered active duty on 28 November 1975.  At the time of his separation, he held military occupational specialty 63B (Wheel Vehicle Mechanic) and he was assigned to the Personnel Control Facility, U.S. Army Field Artillery Center, Fort Sill, OK. 

4.  He was discharged from active duty on 3 May 1979.  His DD Form 214 shows: 

* he completed 2 years, 7 months, and 22 days of active service of which 1 year, 5 months, and 14 days were foreign service
* he had 289 days of lost time from 20 September to 1 December 1977 and from 15 August 1978 to 18 March 1979 
* he served in Germany from 6 April 1976 to 19 September 1977 
* he was discharged with an under other than honorable conditions characterization of service and was issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate)
* the authority and reason for separation are not listed; however, they are consistent with chapter 10, Army Regulation 635-200 (Personnel Separations), for the convenience of the government in lieu of trial by court-martial 

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

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

	a.  Chapter 10 provides 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.  He must have acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	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.

8.  The Manual for Courts-Martial (MCM) Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  A punitive discharge (Dishonorable Discharge or Bad Conduct Discharge) is authorized for an AWOL offense of 30 days or more.  Additionally, the maximum punishment for AWOL includes confinement of 12 to 
18 months and a forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the facts and circumstances that led to his voluntary discharge.  However, he provides a DD Form 214 that shows he was discharged on 3 May 1979 in what appears to be under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.  His DD Form 214 does document the fact that he was AWOL for 289 days which is a violation of the UCMJ.  This violation could have imposed a punitive discharge if tried by court-martial.

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant alleges the conditions of his discharge were unfair, yet he provided no evidence to support his contentions.  Based on his available record that included a significant period of AWOL, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge to an honorable or a general discharge.  The Board does not upgrade discharges solely to allow a former Soldier benefits under Federal or State laws.  

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)                                         AR20140020822





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ABCMR Record of Proceedings (cont)                                         AR20140020822



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