IN THE CASE OF:	  

		BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150004201 


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 that his U. S. Army Reserve (USAR) under other than honorable conditions discharge be upgraded. 

2.  The applicant states he was not aware of orders to be somewhere else.

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

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.  On 20 July 1973 he enlisted in the USAR.  On 8 November 1973, he was ordered to active duty for training (ADT) with a report date of 30 November 1973.


3.  He accepted nonjudicial punishment (NJP) on:

* 11 April 1974 for being absent without leave (AWOL) from 27 February - 24 March 1974
* 31 May 1974 for failing to go at the time prescribed to his appointed place of duty

4.  On 16 June 1974, he was released from ADT.  He was assigned to Headquarters and Headquarters Company, 174th Support Group (USAR), Seattle, WA.

5.  On 7 August 1978, he was ordered to active duty for 17 months and 24 days by Orders 152-318 issued by Headquarters, Sixth U.S. Army, Presidio of San Francisco, CA.  He was ordered to report on 28 September 1978 to the U.S. Army Reception Station at Fort Bliss, TX.  A copy of these orders was sent to the applicant at his Seattle, WA address and to the 174th Support Group.

6.  On 2 October 1978, the applicant was declared AWOL because he had not reported to the U.S. Army Reception Station, Fort Bliss as directed by Orders 152-318.  He was dropped from the rolls on 27 October 1978.

7.  On 2 November 1979, his status was changed from dropped from the rolls to present for duty.  He was apprehended by civilian authorities and returned to military control at Fort Lewis, WA.

8.  On 16 November 1979, court-martial charges were preferred against the applicant for being AWOL from on or about 28 September 1978 to on or about 2 November 1979.

9.  On 21 November 1979, he consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the offense he was charged with and he was:

* guilty of the offense for which he was charged
* making the request of his own free will
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate
* advised he could submit statements in his own behalf

10.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than other honorable conditions discharge and he:
* 
would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  On 21 November 1979, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an under other than honorable conditions discharge.

12.  On 2 January 1980, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Enlisted Personnel Separations) due to conduct triable by court martial.  He had completed 2 months and 2 days of net active service that was characterized as under other than honorable conditions.  He had 400 days of time lost from 28 September 1978 to 1 November 1979.

13.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided no evidence to support his claim that he did not receive Orders 152-318 at his Washington address.  These orders ordered him to active duty for a period of more than 17 months.  As he did not report as ordered, he was declared a deserter.  The fact that he was apprehended by civil authorities after 400 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  At the time of his apprehension he could have demanded trail by court-martial and declared his innocence of the court-martial charges filed against him.  He voluntary requested discharge and evidence shows he was advised of his rights by counsel.  Requesting a voluntary discharge under the provisions of chapter 10, Army Regulation 635-200 means he acknowledged he was guilty of the charge(s) or to lesser charges.  The applicant's voluntary request for discharge to avoid trial by court-martial for his unauthorized absence of 400 days was administratively correct and in conformance with applicable regulations.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an under other than honorable conditions discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his under other than honorable conditions discharge to either 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)                                         AR20150004201



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ABCMR Record of Proceedings (cont)                                         AR20150004201



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