IN THE CASE OF:	  

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20150000908 


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 discharge.

2.  The applicant states he was not in his right mind when he went into the Army. 

3.  The applicant provides his DD Form 214 (Report of Separation 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.  In conjunction with the applicant's enlistment, he completed a Standard Form (SF) 93 (Report of Medical History), dated 21 September 1976, wherein he stated he was in good health.  He checked the appropriate boxes on the form to indicate he did not have and never had any physical/mental problems/deficiencies.  His SF 88 (Report of Medical Examination), dated 21 September 1976, shows the examining physician found he was medically qualified for service.

3.  He enlisted in the Regular Army on 17 November 1976 and he held military occupational specialty 13B (Cannon Crewmember).  On 28 February 1977, he was assigned to the 1st Battalion, 13th Field Artillery, Fort Stewart, GA.

4.  On 6 May 1977, he was reported in an absent without leave (AWOL) status and he returned to his assigned unit on 16 May 1977.

5.  On 25 May 1977, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 6 to 16 May 1977.

6.  On 29 June 1977, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 15 to 17 June 1977.

7.  He was also reported in an AWOL status from 11 to 24 July 1977 and from 
1 August 1977 to 27 January 1978 until he was apprehended, returned to military control, and assigned to the Special Processing Unit, Fort Knox, KY.

8.  On 3 February 1978, court-martial charges were preferred against him for one specification of being AWOL from 1 August 1977 to 27 January 1978.

9.  On 6 February 1978, he completed an SF 93 wherein he stated he was in good health.  He checked the appropriate boxes on the form to indicate he did not have, and never had, any physical/mental problems/deficiencies.  His SF 88, dated 6 February 1978, shows the examining physician found he was medically qualified for separation.

10.  On 7 February 1978, 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 of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested 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.


11.  On 7 February 1978, he was placed on excess leave while awaiting the processing of his request for a discharge.

12.  It appears the separation authority subsequently approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by a court-martial and the issuance of an under other than honorable conditions discharge.  

13.  Accordingly, on 15 May 1978, he was discharged.  His DD Form 214 shows he completed 11 months and 6 days of net active service and he had 206 days of lost time due to being AWOL.

14.  His record is void of any evidence that shows he was diagnosed with or treated for a mental condition/disorder while he was serving on active duty.

15.  On 4 April 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

16.  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 included 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.  An under other than honorable conditions discharge was normally considered appropriate.

17.  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.

18.  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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  

3.  The applicant contends he was not in his right mind when he joined the Army; however, his available record is void of any evidence and he has not provided any evidence to support this contention. 

4.  The evidence of record confirms he received NJP on two different occasions for being AWOL.  He went AWOL on two additional occasions and he had
206 days of lost time at the time of his discharge.

5.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20150000908



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ABCMR Record of Proceedings (cont)                                         AR20150000908



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