RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070016312


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Under Other Than Honorable Conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, he was never offered the opportunity to appear before a military judge and clear his name.  It is his opinion that had he been afforded that opportunity, he would have received a discharge under honorable conditions.  He continues that he enlisted for certain options, but the Army did not honor his enlistment contract.  He states he enlisted to be a mechanic and work on heavy equipment, but he was made to work on "small jeeps."

3.  The applicant provides:

	a.  A copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty) showing that he received a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.

	b.  A copy of his DD Form 4 (Enlistment/Reenlistment Document) showing he enlisted in the Regular Army for 4 years.  This document does not specify options for which the applicant enlisted.

	c.  A copy of Orders 092-608, Headquarters, 4th Infantry Division and Fort Carson, Fort Carson, CO, dated 5 May 1987.  The order assigned him to the Separation and Transfer Point for discharge on 18 May 1987.

	d.  A copy of his DA Form 2-1 (Personnel Qualification Record).

	e.  A copy of a letter from the National Personnel Records Center (NPRC), dated 25 October 2007.

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 12 June 1986, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 25 July 1986, he was discharged from the DEP and enlisted in the Regular Army for 4 years and training in MOS (military occupational specialty) 62B (Construction Equipment Repairer).  He completed the training requirements and was awarded MOS 62B.  He was transferred to Germany for his first permanent duty assignment.  He arrived in Germany on or about 8 January 1987.

3.  The applicant departed his unit in Germany on 27 January 1987 in an absent without leave (AWOL) status.  On 28 February 1987, his unit dropped him from the rolls of the Army as a deserter.  On 11 March 1987, he surrendered to the military authorities at Fort Carson, CO.  He was subsequently assigned to the installation’s Personnel Control Facility.

4.  On 7 April 1987, a court-martial charge was preferred against the applicant for violation of Article 85 (AWOL/Desertion) of the Uniform Code of Military Justice (UCMJ).  On 10 April 1987, the applicant consulted with legal counsel who advised that, if convicted, he could be sentenced to a Dishonorable Discharge, total forfeiture of all pay and allowances, and confinement at hard labor for 2 years.  The applicant's options were explained to him and he elected to request discharge for the good of the service in lieu of trial by court-martial.  In so doing, he acknowledged that he could receive an UOTHC discharge should his request be accepted.

5.  In support of his request for discharge in lieu of trial by court-martial, the applicant provided a handwritten statement in which he stated, "I want a discharge because I can't adapt to the Army life, and also because I can't handle the stress that comes with the Army.  The Army just isn't for me and I would like to get on with my life."

6.  The applicant's request for a chapter 10 discharge was forwarded through his chain of command to the Commanding General (CG), 4th Infantry Division.  On 17 April 1987, the CG approved the applicant's request and directed he be issued a UOTHC discharge.

7.  On 18 May 1987, the applicant was discharged under other than honorable conditions.  He had 8 months and 11 days of creditable service and 43 days of lost time due to AWOL.

8.  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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted to be a construction equipment repairer and was trained as a construction equipment repairer.  He was transferred to Germany for duty as a construction equipment repairer; however, he did not remain in Germany long enough to ever work on any type of equipment.  After just 18 days in Germany, he deserted and returned to the United States.

2.  After surrendering to military authorities, a court-martial charge was preferred against the applicant.  The applicant had every right to face a military judge in a trial by court-martial; however, he instead chose to seek an administrative discharge under the provisions of chapter 10, Army regulation 635-200.

3.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the preferral of charges, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial he now argues he was denied and the punitive discharge that he might have received.


5.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070016312



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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