IN THE CASE OF:	  

		BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140010965 


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 to an honorable discharge.

2.  The applicant states that he was unjustly discharged from the U.S. Army on 17 November 1983.  He states his father passed away and his minor brothers and sister were not able to help their mother in matters relating to her health, finances, and business.  In addition, with the undue stress he was getting from the Army, he was not mentally able to handle the death of his father.  He requested a compassionate reassignment closer to his home, but his request was denied and he couldn't understand the reason provided for the denial.  He adds he has suffered from depression and drug and alcohol problems for years.

3.  The applicant provides copies documents related to his request for compassionate reassignment, request for discharge, DD Form 214 (Certificate of Release or Discharge from Active Duty), and DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).

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 22 April 1980 for a period of 3 years.  He was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  He was assigned overseas to Germany on 24 August 1980.

3.  He accepted nonjudicial punishment (NJP) on two occasions, as follows –

* for being disrespectful in language toward his superior noncommissioned officer (two specifications) and failing to obey a lawful order on 
28 February 1981
* for being absent without leave (AWOL) from 30 December 1981 to 
20 January 1982

4.  He was reassigned to Fort Riley, KS, on 2 June 1982.

5.  The applicant was tried by summary court-martial.

   a.  He pled not guilty to the charges and specifications, but he was found guilty of –

* being AWOL from 3 September 1982 to 15 September 1982
* missing movement on 6 September 1982

	b.  He was sentenced to reduction to the grade of private (E-1), forfeiture of $225.00 pay for one month, and 60 days of restriction to the unit area, place of duty, mess hall, and place of worship.

   c.  The Summary Court-Martial Convening Authority approved the sentence on 22 September 1982.

6.  On 16 August 1983, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 4 December 1982 to 4 August 1983.

7.  On 17 August 1983, 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 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
* be ineligible for many or all benefits administered by the Veterans Administration
* be 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 and reduced to the pay grade of E-1.

	d.  He was also advised that he could submit statements in his own behalf; however, he did not submit any statements.

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

8.  His immediate commander recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.  The commander noted the applicant stated to him that his father died. The applicant took leave and once he got home he was "shook up pretty bad." He submitted a request to be reassigned to Georgia, but it was disapproved.  His unit then initiated a request for hardship discharge, but he didn't wait for it to be approved.  The applicant was apprehended by civilian authorities on 4 August 1983 in Mobile, AL.  He told the commander he wanted to be discharged.

9.  The intermediate commander recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.

10.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

11.  The applicant's DD Form 214 shows he entered active duty this period on 
22 April 1980 and he was discharged on 17 November 1983 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 completed 2 years, 9 months, and 24 days of net active service during this period and he had 172 days of time lost.

12.  A review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

13.  In support of his request the applicant provides the following documents.

   a.  four letters (written by a medical doctor, a reverend, and two family acquaintances in July 1982) submitted in support of the applicant's request for compassionate reassignment that show his father was suffering from malignant lymphoma carcinoma of the lungs and he was in critical condition.  They also requested reassignment of the applicant to the Mobile, AL area.

   b.  Commander, U.S. Army Military Personnel Center, Alexandria, VA, message, date-time-group 081012Z September 1982, that shows the applicant's request for compassionate reassignment was not favorably considered.  It also shows the recent death of his father and financial problems presented were not a basis for favorable consideration, that other family members were available to provide assistance, and that the applicant could contribute financial support from his assigned duty station.

14.  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 he was unjustly discharged after his request for compassionate reassignment was denied based on a reason that he cannot understand.

2.  The evidence of record shows the applicant requested a compassionate reassignment and that his request was denied because the Department of the Army determined other family members were available to provide assistance to his mother and that the applicant could contribute financial support from his assigned duty station.

   a.  The evidence of record also shows that after his request was disapproved, a request for hardship discharge was initiated, but the applicant went AWOL prior to final action being taken on the request.

   b.  The reasons for which the applicant's request for compassionate assignment was denied were clearly conveyed to him.  Thus, it appears the applicant simply did not accept the reasons because he then went AWOL rather than waiting for a decision on his request for hardship discharge.

3.  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.  Therefore, considering all the facts of the case, the reason for discharge and characterization of service were appropriate and equitable.

4.  During the period of service under review, the applicant received NJP on two occasions, he was found guilty by summary court-martial, he was then charged with an offense punishable by a bad conduct or dishonorable discharge, he had 
172 days (i.e., almost 6 months) of time lost, he was reduced to private (E-1) prior to his discharge, and he failed to complete his 3-year enlistment 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 or general discharge.

5.  Therefore, in view of all 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)                                         AR20140010965



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ABCMR Record of Proceedings (cont)                                         AR20140010965



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