IN THE CASE OF:	  

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20140021544 


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.

2.  The applicant states, in effect, he wants his discharge upgraded. 

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's records show he enlisted in the Regular Army on 9 November 1967.  He did not complete basic combat or advanced individual training and he was never awarded a military occupational specialty.

3.  On 19 January 1968 at Fort Campbell, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 5 January to 18 January 1968.

4.  On 31 March 1968, he again departed his unit in an AWOL status and he was dropped from the rolls as a deserter on 22 April 1968.  He ultimately returned to military control on 27 August 1968.

5.  On 10 September 1968, he was convicted by a special court-martial of one specification of AWOL from 31 March to 27 August 1968.  The court sentenced him to confinement at hard labor for 6 months and forfeiture of pay for 6 months. The convening authority suspended the portion of the sentence that pertained to confinement at hard labor for 6 months for a period of 6 months and approved his sentence on the same date.

6.  On 11 September 1968, the applicant departed his unit in an AWOL status and he was dropped from the Army rolls as a deserter.  He ultimately returned to military control on 14 January 1969.

7.  On 15 January 1969, the convening authority ordered the portion of the sentence that pertained to suspension of confinement at hard labor for 6 months vacated and the unexecuted portion of the sentence to confinement executed.

8.  On 21 January 1969, he was convicted by a special court-martial of one specification of AWOL from 11 September 1968 to 14 January 1969.  The court sentenced him to confinement at hard labor for 6 months and forfeiture of pay for 6 months.  The convening authority approved his sentence the next day.

9.  On 27 March 1969, the Fort Riley Correctional Training Facility ordered the unexecuted portion of the applicant's sentence to confinement at hard labor and forfeiture of pay remitted.

10.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain Special Orders Number 193, issued by Headquarters, U.S. Army Training Center, Fort Campbell, KY, on 13 July 1970 ordering his discharge from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with his service characterized as under other than honorable conditions effective 15 July 1990.  

11.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in lieu of trial by court-martial on 15 July 1970 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service.  This form also shows he completed 7 months and 9 days of creditable active service during this period and he had 566 days of lost time. 

12.  On 4 August 1980, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  The ADRB denied his request for an upgrade of his discharge.  

13.  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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records are void of the complete facts and circumstances that led to his discharge.  However, his records contain his DD Form 214 that shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 15 July 1970 under the provisions of Army Regulation 635-200, chapter 10.

2.  The issuance of a discharge under the provisions of chapter 10 of Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by 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 provided no evidence that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service during his enlistment that included multiple periods of AWOL.

3.  Based on his record of indiscipline, which includes one instance of NJP, two courts-martial convictions for AWOL, and an extensive history of AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis to upgrade his discharge to an honorable or 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 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)                                         AR20140021544





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ABCMR Record of Proceedings (cont)                                         AR20140021544



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