IN THE CASE OF:  	  

		BOARD DATE:  17 September 2015	  

		DOCKET NUMBER:  AR20150001726 


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 a general discharge and that the reason be changed to "Convenience of the Government."

2.  The applicant states that he served honorably up until the date he was charged with being absent without leave (AWOL).

   a.  He states he was having marital problems and his spouse left/disappeared from their home on Fort Hood, TX.  She left in their only vehicle.  He requested leave to travel to her relatives' home in Seattle, WA, but the first sergeant (1SG) denied his request for leave.  The 1SG informed the applicant that he would place him in an AWOL status, if he left the unit to go and find his spouse.

   b.  The applicant responded by telling the 1SG his home of record (HOR) address, if he needed to locate him.  The applicant states that he no longer wanted to say in the U.S. Army because of how he had been treated by the 1SG.

   c.  The applicant packed his personal belongings and left the unit.  He was gone for about 83 days when Federal marshals apprehended him at his HOR and brought him to Fort Gordon, GA, where he was discharged.

   d.  He adds that he is currently residing in veterans' transitional housing for homeless veterans and his address may change prior to the decision being made in his case.  Thus, he requests contact by email or through the Department of Veteran Affairs (VA) for his new mailing address.
3.  The applicant provides no documentary 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 (RA) on 18 February 1969 for a period of 3 years.  He was awarded military occupational specialty 64B (Heavy Vehicle Driver).  He was assigned overseas to Germany on 15 January 1970.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged on 29 April 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the purpose of immediate reenlistment.  He completed
2 years, 2 months, and 12 days of net active service during this period.

4.  The applicant reenlisted in the RA on 30 April 1971 for a period of 5 years.
He was advanced to private first class/pay grade E-3 on 15 September 1972.

5.  He was reassigned from overseas on 27 December 1972 and assigned to Fort Hood, TX, on 27 January 1973.

6.  The applicant accepted NJP on four occasions for violations of the Uniform Code of Military Justice (UCMJ) –

* Article 86, for leaving his appointed place of duty without authority on
28 March 1973
* Article 86 (two specifications), for failing to go to his appointed place of 
duty on 1 March and 3 March 1974
* Article 86, for being absent from his unit on 18 December 1974 and remaining absent until 30 December 1974
* Article 86, for being AWOL from 6 January 1975 to 7 January 1975; Article 91, for willfully disobeying a lawful order from his superior commissioned officer on 7 January 1975; and Article 134, for breaking restriction on 6 January 1975

7.  On 15 May 1975, court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86 (two specifications), for being AWOL from 
8 January 1975 to 17 January 1975 and from 3 March 1975 to 7 May 1975.

8.  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(s) 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
* ineligible for many or all benefits administered by the Veterans Administration
* 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.

	d.  He was also advised that he could submit statements in his own behalf and he elected to submit a statement.

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

   f.  A review of the applicant's statement shows that he stated –
   
* I dislike the Army
* I cannot be rehabilitated
* I will accept a UD [Undesirable Discharge]
* I waive the 72 hour waiting period

9.  His chain of command recommended approval of his request for discharge with the issuance of an undesirable discharge.

10.  The separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that his service be characterized as under other than honorable conditions.

11.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he entered active duty this period on 30 April 1971 and he was discharged on 
30 July 1975 under the provisions of Army Regulation 635-200, 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 had completed 4 years and 4 days of net active service during this period and he had 87 days of time lost.

12.  A review of the applicant's military personnel records 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.  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 the reason for his separation and characterization of his service should be changed because his request for leave to resolve his family problems was denied and he served honorably up until the date he was charged with AWOL.

2.  Records show a DD Form 214 documents the applicant's honorable period of service in the RA from 18 February 1969 through 29 April 1971.

3.  The applicant reenlisted in the RA on 30 April 1971.  The evidence of record shows his acts of indiscipline began on 28 March 1973 and included a period of AWOL from 18 December 1974 to 30 December 1974 (emphasis added).

   a.  On 15 May 1975, court-martial charges were preferred against the applicant for being –
   
* AWOL from 8 January 1975 to 17 January 1975
* AWOL from 3 March 1975 to 7 May 1975

   b.  Notwithstanding the applicant's contention, there is no evidence of record that shows the applicant requested leave to deal with his family matters or that his request for leave was denied prior to any of the three periods of AWOL.

   c.  Moreover, the evidence of record does not support his contention that he served honorably up until the date (15 May 1975) he was charged with AWOL.

4.  The evidence of record shows that 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.  Thus, he is not entitled to correction of the narrative reason for his discharge.

5.  During the period of service under review the applicant had nearly 3 months of time lost and he failed to complete his 5-year active duty service 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 discharge or a general, under honorable conditions discharge.

6.  Therefore, in view 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)                                         AR20150001726



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ABCMR Record of Proceedings (cont)                                         AR20150001726



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