BOARD DATE:  22 September 2015

		DOCKET NUMBER:  AR20150001435


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.

2.  The applicant states he and his family gave 10 years of their lives to his country.  Things went wrong and he had to choose between family and the Army; he chose family, which is why he is still married.

3.  The applicant provides no additional evidence in support of his request.

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 26 February 1971.  Upon completion of his initial entry training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  He was later awarded and reclassified into MOS 13F (Fire Support Specialist).  

3.  He served throughout several periods of reenlistment and/or extension, in positions of increased responsibility, and was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 June 1977.  

4.  He successfully completed the Drill Sergeant Candidate Course and was reassigned to duties as a Drill Sergeant on 7 April 1978.

5.  The applicant's commander recommended his removal from duties as a Drill Sergeant on 3 July 1979, based on his engagement in fraternization with a female trainee during the period 29 June through 1 July 1979.  The applicant was removed from the Drill Sergeant Program on 5 July 1979 for major infractions of training policies.  The applicant was notified of his removal on 5 July 1979; however, he elected not to appeal.

6.  He was reported by his unit on 21 November 1979 as absent without leave (AWOL).  He was dropped from the rolls of the Army on 20 December 1979.

7.  He returned to military control on or about 1 April 1980.

8.  Court-martial charges were preferred against him on 10 April 1980 for being AWOL from on or about 21 November 1979 through on or about 1 April 1980.

9.  His record contains an FDCF (Fort Dix Control Facility) Form 691A (Personnel Control Facility (PCF) Interview Sheet), dated 11 April 1980, which documents the details of an interview between the applicant and the PCF Commander.  This document shows:

* the service member (SM) states he had been caught fraternizing with one of his female trainees; as a result, he was pulled off the trail and he received a letter of reprimand from his battery commander
* his battery commander also informed his wife when she called to inquire about the SM
* his wife became upset and he was granted 2 weeks of leave to go home to settle things with his wife
* when he returned back from leave, his wife told him she was going home and she left; the SM tried to stay at Fort Sill for about 4 months, but he missed his family so he put in a request for compassionate reassignment
* the SM states he submitted the paperwork through his battery, then he went home on leave and tried to get himself attached to Fort Devens, Massachusetts, which is where he had asked to be reassigned
* officials at Fort Devens checked with officials at Department of the Army, who found no paperwork had been submitted in support of a compassionate reassignment
* the SM's commander denied that the SM ever submitted a request
* the SM became upset by this, so he went AWOL

10.  He consulted with legal counsel on 11 April 1980 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision 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.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

12.  He elected to submit a statement in his own behalf, wherein he admitted he was AWOL and attributed his AWOL service to his marital problems.  He further stated he requested a hardship discharge or compassionate reassignment; however, neither request was acted on or even acknowledged.

13.  The separation authority approved his request for discharge on 8 May 1980 and directed the applicant be reduced to the lowest enlisted rank/grade and be issued an under other than honorable conditions discharge.  

14.  The applicant was discharged from the Army on 10 June 1980.  The DD Form 214 he was issued shows he was credited with the completion of          7 years, 6 months, and 5 days of total active service, and he had lost time from 21 November 1979 through 31 March 1980.  His DD Form 214 further shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and he was issued an under other than honorable conditions discharge.  

15.  His available record contains no documentation that shows he submitted requests for hardship discharge or compassionate reassignment, beyond those documents previously addressed above.

16.  The Army Discharge Review Board denied his request for a discharge upgrade on 16 June 1982.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

   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 clearly be 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record contains no documentation that shows he submitted a request for a hardship discharge or compassionate reassignment.  After discovering at Fort Devens that there was no record of a request being submitted, he could have submitted such a request.  Instead, he chose to go AWOL.  

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation 635-200, are voluntary requests for discharge in lieu of trial by court-martial.

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors that would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

5.  Based on his extended period of time lost, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  

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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20150001435



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