IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003842 


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 an under honorable conditions (general) discharge.  

2.  The applicant states he realizes he went absent without leave (AWOL) to help a friend and that this action was against the rules and he should have been punished.  However, he was not informed at the time that he had the option to request a discharge under chapter 13.  He was told at the time that his character of service would be upgraded.  He now realizes that this was wrong.  He would like to apply for benefits (healthcare) and cannot do so with the current characterization of service. 

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.  The applicant's service records show he enlisted in the Regular Army on 7 June 1974.  He was assigned to Fort Knox, KY where he completed basic combat training. 

3.  On 12 December 1974, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving his appointed place of duty without authority. 

4.  Following completion of basic combat training, he was reassigned to Fort Campbell, KY to complete advanced individual training.  He did not complete training.  His records show: 

* on 5 September 1974, he departed his training unit in an AWOL status 
* on 4 October 1974, he was dropped from the rolls as a deserter
* on 15 November 1974, he was apprehended by civil authorities in Madison, IN
* Special Orders (SO) Number 237, issued by Headquarters, U.S. Army Personnel Control Facility, Fort Knox, KY, on 16 December 1974, indicating he returned from AWOL and was assigned to Fort Campbell for processing

5.  On 16 December 1974, court-martial charges were preferred against the applicant for one specification of AWOL from 5 September 1974 to 15 November 1974. 

6.  The complete facts and circumstances of the applicant's discharge processing are not available for review by the Board.  However, his record contains:

	a.  SO Number 25, issued by Headquarters, U.S. Army Personnel Control Facility, Fort Knox, on 31 January 1975 discharging him from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, effective 4 February 1975 with an under other than honorable conditions discharge.

	b.  A DD Form 214 shows he was discharged on 4 February 1975 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate.  This form also shows he completed 5 months and 18 days of net active service and he had 71 days of lost time. 
7.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

8.  Army Regulation 635-200 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 UD was considered appropriate at the time the applicant was discharged.  

	b.  Chapter 13 of the regulation in effect at the time contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

	c.  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.  

	d.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, his record contains documents related to his duty status and a court-martial charge sheet.  It also contains separation orders and a DD Form 214 that shows he was discharged on 4 February 1975 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial with an under other than honorable conditions discharge. 
2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  A chapter 13 is not requested by the individual.  It is initiated by the chain of command after certain conditions are met.  There was never a regulatory or statutory requirement to inform the applicant of the option to request a chapter 13.  He did not have that option.  

4.  The evidence shows his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  There is insufficient evidence to upgrade his discharge to an honorable or a general discharge.  Additionally, this Board does not upgrade discharges solely to allow a former Soldier benefits under Federal or State laws.  Each case is considered on its merits.

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)                                         AR20150003842





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ABCMR Record of Proceedings (cont)                                         AR20150003842



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