IN THE CASE OF:	   

		BOARD DATE:	  30 July 2015

		DOCKET NUMBER:  AR20140021130 


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 a general, under honorable conditions discharge.     

2.  The applicant states the circumstances at the time of his discharge were convoluted.  He was dealing with personal family problems and unfortunately, as a result, he was overwhelmed and missed movement to outside the country.  This resulted in an administrative discharge in lieu of a court-martial.  He is now trying to do the right thing but has found that [his discharge] has been a large impediment to his future.  He does not think the mistakes of a 19 year old kid should continue to haunt a 53 year old man.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge 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 30 October 1978 at the age of 17 years, 9 months, and 23 days.  He competed basic training and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was scheduled to report to the 22nd Replacement Detachment, Fort Knox, KY, on 18 February 1979 but he failed to report.

3.  On 14 March 1979, he was assigned to the 22nd Replacement Detachment, Fort Knox.  On 23 March 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his assigned unit from 18 February to 14 March 1979 (25 days).  

4.  On 16 April 1979, he was assigned to the 42nd Medical Hospital, Fort Knox.  

5.  On 28 December 1979, he was notified that reassignment instructions had been received for him for assignment to the 21st Replacement Battalion, Germany, with an arrival month of June 1980 for duty in MOS 91B.  On 23 April 1980, he was promoted to the rank/grade of specialist four (SP4)/E-4.

6.  His record contains a DD Form 1482 (Military Aircraft (MAC) Transportation Authorization) wherein it shows he was scheduled to report to McGuire Air Force Base, NJ, on 24 June 1980 for a flight to Frankfurt, Germany, and a final destination of the 21st Replacement Battalion.  He was subsequently reported as AWOL from the 21st Replacement Battalion as he failed to report and he was dropped from the rolls (DFR) as a deserter.

7.  On 6 August 1980, he surrendered to military authorities at the Presidio of San Francisco, San Francisco, CA.  He was assigned to the U.S. Army Personnel Control Facility (USAPCF), Fort Ord, CA.

8.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, it appears court-martial charges were preferred against him for being AWOL from 24 June to 5 August 1980 (43 days) and that he subsequently submitted a request for 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.  


9.  His record contains a DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 7 August 1980, wherein it stated, "Service member (SM) arrived at USAPCF, Fort Ord, CA, on 6 August 1980 from DFR 5 August 1980 and is now pending discharge under chapter 10, Army Regulation 635-200."

10.  His record contains a DA Form 3822 (Report of Mental Status Evaluation), dated 8 August 1980, wherein it shows he underwent a mental health evaluation on that date.  The examining physician found his behavior and thought content were normal, he had no mental illness, he was mentally responsible, able to distinguish right from wrong, and he met the retention standards.

11.  On 8 August 1980, he was placed on excess leaving pending the processing of his request for a chapter 10 discharge.  He was discharged on 23 September 1980.

12.  The DD Form 214 he was issued shows he was discharged in the rank of private, under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 1 year, 9 months, and 11 days of net active service of which 47 days (1 month and 14 days) was excess leave and he had 68 days (2 months and 8 days) of lost time due to being AWOL.

13.  His DA Form 2-1 (Personnel Qualification Record) shows he was single and had no dependent children at the time of his service.  His available record is void of any evidence that shows he ever requested assistance with or counseling for dealing with any family problems/issues.

14.  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.

15.  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 includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

16.  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. 

17.  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 applicant's record is void of the specific facts and circumstances surrounding his discharge processing.  However, it appears he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and subsequently requested a chapter 10 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.  In the absence of evidence to the contrary, it is presumed that he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant contends his discharge should be upgraded because he was young and made mistakes at the time of his service.  Records show he was 18 years of age when he first went AWOL and over 19 years of age when he went AWOL for a second time.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  His record of service shows he received NJP in March 1979 for being AWOL for 25 days and at the time of his discharge he had over 2 months of lost time due to being AWOL.  His overall service did not meet the standards of acceptable conduct and performance and this misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140021130



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ABCMR Record of Proceedings (cont)                                         AR20140021130



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