IN THE CASE OF:  	  

		BOARD DATE:  4 August 2015	  

		DOCKET NUMBER:  AR20140021436 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states:

* an incident occurred while he was on leave and the incident made a bad reflection on him as a person
* the incident marked against him had nothing to do with serving his country
* he was young, immature, and foolish at the time of the incident and he had no idea how it would affect him later in life
* he has become a mature person through life experiences

3.  The applicant provides no additional evidence.

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 25 June 1976 at 18 years of age.  After training he was assigned to Company B, 2nd Battalion, 34th Infantry Division, Fort Stewart, GA.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 22 July 1980, for being absent without leave on or about 26 June 1980 until on or about 27 June 1980.

4.  On 14 August 1980, NJP under the provisions of Article 15, UCMJ, was initiated against him for failing to go at the time prescribed to his appointed place of duty on or about 4 August 1980.

5.  On 16 September 1980, he was reported as being AWOL.

6.  Records indicate he was present for duty for an unknown length of time on 22 September 1980.  A DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows he accepted NJP on 22 September 1980 for:

* failing to go at the time prescribed to his appointed place of duty on three instances on or about 4 August 1980
* failing to go at the time prescribed to his appointed place of duty on two instances on or about 6 August 1980

7.  On 16 October 1980, his status was changed from AWOL to dropped from the rolls.

8.  On 24 January 1981, he surrendered to military authorities at Fort Knox, KY.

9.  On 26 January 1981, he underwent a mental status evaluation in which he was found mentally responsible.  He was deemed to have the mental capacity to understand and participate in proceedings.  Additionally, he elected to forego a medical examination.

10.  On 27 January 1981, charges were preferred against him for being AWOL from on or about 16 September 1980 until on or about 24 January 1981.

11.  On 28 January 1981, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.

12.  After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged his guilt and that:

* he understood he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Veteran's Administration as a result of such a discharge
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions
* he elected to submit a statement in his own behalf

13.  In his statement, he stated:

* he was 22 years of age and he joined the Army to find out what it was like
* he wanted to get out of the Army because his wife was in the hospital and his son also had to go into the hospital
* he had so many bills that were behind and he was unable to catch up on them while serving in the Army
* he now had a job that paid well and he expected to be caught up with his bills by December 1981

14.  Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Orders 20-12, dated 30 January 1981, reassigned him from Fort Stewart, GA, to the Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, KY, effective 24 January 1981.

15.  On 13 February 1981, his immediate and intermediate commanders recommended approval of his request for discharge and recommended his discharge under other than honorable conditions.

16.  On 20 February 1981, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions and reduction to the lowest enlisted grade.

17.  On 23 March 1981, he was discharged accordingly.  His DD Form 214 shows he was administratively discharged by reason of conduct triable by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 4 years, 4 months, and 21 days of active service.  His service was characterized as under other than honorable conditions.

18.  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.

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

	a.  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.

	b.  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.

	c.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized sentence 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered.

2.  Records show he was 22 years of age at the time of his indiscipline.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence of record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and received a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.  

4.  In view of the foregoing evidence, there is no 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 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)                                         AR20140021436



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140021436



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1