IN THE CASE OF:	  

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20150002763 


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, in effect, an upgrade of his undesirable discharge.  

2.  The applicant states:

   a.  He requested three days leave due to his mother's illness.  The request was received and never acted upon.  He claims he could not find the time for his command to act on his request because his mother was dying, so he just left.  He was absent 75 days of excess leave and was sent to the stockade where he served 10 days.

   b.  He requested leave due to a family emergency and his request was not acted upon which caused him to act in a manner which was not consistent with his usual attention to his responsibilities.  Until the incident, he served his country well and honorably as a specialist four (SP4) and he deeply regrets his actions.  He was proud to be a member of the armed forces and unfortunately his youth played a part in his actions.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Orders 9-10




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.  Nearly 19 years old, the applicant enlisted in the Regular Army on 6 July 1976.  He completed training and he was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 8 June 1978, while serving in the rank of SP4, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without authority from his appointed place of duty for the period 5 to 26 May 1978.  His punishment consisted of a reduction in rank to private first class and 14 days extra duty and restriction.

4.  On 7 November 1978, court-martial charges were preferred against him for, without authority, absenting himself from his organization for the period of 7 July to 2 November 1978.

5.  On 9 November 1978, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily 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.

6.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected to submit a statement in his own behalf in which he stated:

   a.  He was 21 years old and a high school graduate.  His reasons for getting out of the Army were because he was administratively dropped from the           5th Division Noncommissioned Officer Academy due to his car breaking down the week before he was supposed to graduate.

   b.  He had a leave in while he was at the academy and the sergeant major (SGM) kept it in his desk for 30 days and gave it to him to get signed on the day he was supposed to leave.  No leave was granted.

   c.  His mother was in the hospital for a cancer operation and he was sent to the field during the week she was going to be operated on.  When he got out of the field, he called home and she had already come out of surgery.  He was worried all week because he couldn’t go home to find out her condition.

   d.  He had a chapter 5 discharge approved and sent to the SGM he worked for; however, he was absent without leave (AWOL) during the week the discharge came down.  He was going to return and take his punishment but the SGM ripped it up after the applicant had worked on the request for 4 months prior to turning himself in to civilian authorities.
 
7.  On 12 December 1978, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge.  On 22 January 1979, the applicant was discharged accordingly.  He completed 2 years, 2 months, and 1 day of total active service with 139 days lost time.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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.

10.  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.

11.  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 applicant's contention that his discharge should be upgraded was carefully considered; however it appears to be without merit.

2.  The applicant's record shows he 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.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows he was AWOL from his organization from 5 to 26 May 1978 and from 7 July to 2 November 1978.    Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.

5.  Records show the applicant was nearly 21 years of age at the time of his first AWOL offense.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  

6.  In view of the foregoing, there appears to be an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.
 

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)                                         AR20150002763





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ABCMR Record of Proceedings (cont)                                         AR20150002763



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