IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150003338 


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 there was no error; he was just young and made a stupid mistake.  He has not been in trouble and has held a job since his discharge.  He got cancer and was left disabled after treatment.  

3.  The applicant provides no additional evidence.

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's records show he enlisted in the Regular Army on 20 October 1976 at the age of 17 years and 3 months.  On 25 May 1977, he was assigned to the 802nd Engineer Battalion, Korea.

3.  He received nonjudicial punishment under the provisions on Article 15, Uniform Code of Military Justice (UCMJ), on:

* 14 November 1977, for violating a lawful regulation by exceeding his combined dollar and cosmetic limit for August 1977
* 22 November 1977, for violating a lawful regulation by exceeding his combined dollar and cosmetic limit for September 1977

4.  On 23 June 1978, he was assigned to the 704th Maintenance Battalion, Fort Carson, CO.  On 1 November 1979, he was reported in an absent without leave (AWOL) status from his assigned unit and he was subsequently dropped from the rolls of the Army as a deserter.  

5.  On 28 December 1979, he was apprehended and returned to military control.  He was subsequently assigned to the U.S. Army Personnel Control Facility, Fort Knox, KY.

6. On 14 January 1980, court-martial charges were preferred against him for being AWOL from 1 November to 28 December 1979.

7.  On 15 January 1980, 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.

8.  In his request for discharge, he acknowledged he understood if the discharge request was approved, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

9.  In an undated statement he submitted on his own behalf, he stated, in effect, that he joined the Army because of pressure from his parents.  He wanted to get out of the Army because his wife wanted him to get out or she wanted a divorce.  He chose to have his family.

10.  On 15 January 1980, he was placed on excess leave pending the processing of his request for a discharge.

11.  On 8 April 1980, his immediate and senior commanders recommended approval of his request with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

12.  On 11 April 1980, the separation authority approved his request for a discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 1 May 1980, he was discharged accordingly.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 3 years, 4 months, and 16 days of net active service of which 106 days was excess leave and he had 58 days of lost time due to being AWOL.

14.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  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.

16.  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.


17.  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 discharge 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.  He contends his discharge should be upgraded because he was young and made a stupid mistake at the time he served.  Records show that he was over 
20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  His misconduct also renders his service unsatisfactory.  As such, he does not meet the criteria for an honorable or 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)                                         AR20150003338



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ABCMR Record of Proceedings (cont)                                         AR20150003338



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