IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140007921 


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 upgrade of his characterization of service and correction of his date of discharge.

2.  The applicant states he did his time, 30 days, for being absent without leave (AWOL) and shouldn't have to pay for it for the rest of his life.  He served 28 months, not 17 months.  He discharge puts him in an unfavorable light and makes it impossible to find employment or get Department on Veterans Affairs (VA) benefits.  He was a good Soldier and eligible to reenlist.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty), DD Form 215 (Correction to the Form 214), birth certificate, and a court order for a legal name change.

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 September 1974, completed training, and was awarded the military occupational specialty 11B (Infantryman).

3.  The applicant received nonjudicial punishment (NJP) on 30 December 1975 for failure to draw his weapon and report for guard duty.

4.  The applicant was AWOL from 31 December 1975 through 25 January 1976 and received NJP for this period of AWOL on 27 January 1976.

5.  The applicant was AWOL for the period 6 February 1976 through 11 March 1976.  This period of AWOL ended in the applicant's apprehension by civilian authorities.

6.  Court-martial charges were preferred for his second period of AWOL.  

7.  On 24 March 1976, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an undesirable discharge (UD) certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD.  He submitted a statement with his request wherein he stated that if he was not discharged he would continue to go AWOL.

8.  The discharge authority approved the discharge request and directed the applicant be discharged under other than honorable conditions, receive a UD certificate, and be reduced to pay grade E-1.

9.  On 13 May 1976, the applicant was discharged with a characterization of service of under other than honorable conditions.  His DD Form 214 shows he had 1 year, 5 months, and 13 days of creditable active service, 77 days of lost time, and a reentry eligibility (RE) code of 4.  The applicant is not shown to have received any awards or decorations.

10.  On 29 November 1979, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

11.  On 8 July 1987, the applicant's RE code was corrected to RE-3, RE-3B, and RE-3C.  The record contains no evidence as to why this change was made.

12.  On 9 March 1989, the ADRB again denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge; and

   c.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UD certificate would normally be furnished an individual who was discharged for the good of the service.  

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment/reenlistment and processing of persons into the Regular Army, U.S. Army Reserve, and the Army National Guard.  It provides the following:

	a.  an RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are fully qualified for enlistment if all other criteria are met; 
	b.  an RE-3 applies to Soldiers who are considered not fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable; and

   c.  RE-3B - Individuals who have time lost during their last period of service.  Ineligible for enlistment unless waiver is granted. 
   
   d.  RE-3C - lndividuals who have completed over 4 months service who do not meet the pay grade requirements.  Ineligible for enlistment unless waiver is granted
   
   e.  RE-4 - Individuals separated from last period of service with a nonwaiverable disqualification.  Disqualification is nonwaiverable. 

15.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Entitlement to VA benefits is neither within the purview of this Board nor is it normally considered a basis for granting relief.

2.  Why the applicant's RE code was changed in 1987 is not of record.  Regulations state a Chapter 10 discharge carries an RE–4 code.  While it is correct that, due to his lost time and discharge in pay grade E-1, he could also have received an RE–3B and RE–3C, an RE–3 would not be appropriate unless the reason for his discharge was also changed.  There is no evidence that any other change to his records occurred at that time.  

3.  The applicant has not provided and the record does not contain any evidence that he had any service after 13 May 1976 or that he reenlisted at any time.  The discharge date is presumed to be correct.  

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

5.  The applicant was advised of the effects of a discharge UD and that he would be deprived of many or all Army and VA benefits.  He submitted a statement in his own behalf at the time of discharge wherein he stated that if he was not discharged he would continue to go AWOL.  

6.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

7.  The applicant's limited creditable service is devoid of any factors that would mitigate the two NJP's and his 77 days of AWOL.   

8.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

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)                                         AR20140007921



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ABCMR Record of Proceedings (cont)                                         AR20140007921



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