IN THE CASE OF:	  

		BOARD DATE:	 22 October 2015 

		DOCKET NUMBER:  AR20150004245 


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 service characterization.  

2.  The applicant states he requested an early release from active duty for personal reasons and was denied.  He needed to get out of the Army to take care of his son.

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 enlisted in the Regular Army on 5 October 1971 and held military occupational specialty 11H (Infantry Direct Fire Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  A DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 14 August 1973, shows he accepted nonjudicial punishment (NJP) for failing to go to his appointed place of duty at the prescribed time on 12 August 1973.  

4.  A commander's inquiry, dated 7 January 1974, states the applicant went absent without leave (AWOL) on 4 January 1974 and had previously received NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the prescribed time.  His commander also stated the applicant, for the most part, had been a below average Soldier during his tenure at the unit and had a history of indebtedness and lateness.  Furthermore, his performance of duty and his marriage had deteriorated during the month prior to his AWOL.  

5.  A DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 28 August 1974, shows he was AWOL from 4 January 1974 to 16 August 1974.

6.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 11 October 1974, under the provisions of Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), chapter 10, and he received an undesirable discharge with a character of service of under other than honorable conditions.  He completed 2 years, 5 months, and 3 days of creditable active military service with 224 days of time lost.

7.  There is no indication he applied to 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 of the version in effect at the time provided that a member who committed 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 
at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (VA) benefits.

	b.  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.  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 record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged for the good of the service on 11 October 1974, under the provisions of Army Regulation 635-200, chapter 10, and he received an under other than honorable conditions discharge

2.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required him to have voluntarily, willingly, and in writing request discharge from the Army for the good of the service.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no evidence that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment.  Absent evidence to the contrary, regularity must be presumed in this case.

3.  His record shows he received NJP for a failure to repair and that he was AWOL for 224 days.  This misconduct is punishable by court-martial and rendered his service unsatisfactory.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  The available evidence does not show his service or the conditions surrounding his discharge merit an upgrade of his service characterization.  



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)                                         AR20150004245





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ABCMR Record of Proceedings (cont)                                         AR20150004245



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