IN THE CASE OF:	  

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20140021040 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he did nothing wrong to warrant being discharged, except to go home and help his mother and family.

   a.  He states that he was raised in a small rural community.  His father worked hauling pulp wood.  Everyone else in his family also worked to help maintain the home, put food on the table, and make sure they had clothing.

   b.  When he was old enough, he went out to the fields to pick cotton with his mother.  When he was in high school, he worked in a canning center.  He gave his pay to his mother to help with the needs of the family.

   c.  He finished high school and enlisted in the Army.  After completing training he was assigned to Fort Hood, TX.  He was then assigned overseas to Germany for a 6-month rotation.

   d.  He found out that his father had a terminal illness and could no longer work.  He states, "I felt that it was my honor to help my family who [was] in dire need at my home.  My mother could not handle the stress and pressure by herself."

3.  The applicant provides a copy of 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 enlisted in the Regular Army on 29 March 1976 for a period of 
4 years.  Upon completion of training, he was awarded military occupational specialty 11E (Armor Crewman).

3.  He was assigned to Fort Hood, TX, on 29 July 1976.  He was absent without leave (AWOL) from 17 January 1977 through 24 January 1977.

4.  He was assigned overseas to Germany in a temporary duty status on 1 March 1977.  He returned to Fort Hood, TX, on 24 August 1977.

5.  On 18 November 1977, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 27 September 1977 to 16 November 1977.

6.  The applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.


	b.  He was advised that he might be –

* deprived of many or all Army benefits
* ineligible for many or all benefits administered by the Veterans Administration
* deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to submit any statements.

   e.  The applicant and his counsel placed their signatures on the document.

7.  The company commander interviewed the applicant and noted, "Reason for AWOL:  Personal reasons" and "has become disillusioned with the military."

8.  His chain of command recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.

9.  The separation authority approved the applicant's request for discharge and directed that his service be characterized as under other than honorable conditions.

10.  The applicant's DD Form 214 shows he was discharged on 9 December 1977 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, with an under other than honorable conditions characterization of service.  He had completed 1 year, 6 months, and 10 days of net active service during this period and he had 62 days of time lost.

11.  A review of the applicant's military personnel records failed to reveal any evidence that he requested compassionate reassignment or hardship discharge. This review also failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  Chapter  3, 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.

   c. 	Chapter 3, 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 contends his discharge should be upgraded because the only thing he did wrong was go home to help his family, which did not warrant a discharge under other than honorable conditions.

2.  There is no evidence of record that shows the applicant requested assistance in dealing with his family matters by means of requesting a compassionate reassignment or hardship discharge.

3.  The evidence of record shows the applicant went AWOL for personal reasons. 
When he returned to military control he informed his commander that he had become disillusioned with the Army.

4.  The evidence of record shows that the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.


5.  During the period of service under review he had more than 2 months of time lost and he completed less than 19 months of his 4-year active duty service obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable discharge or a general, under honorable conditions discharge.

6.  Therefore, in view of the foregoing, there is an insufficient basis for granting 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 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)                                         AR20140021040



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ABCMR Record of Proceedings (cont)                                         AR20140021040



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