BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007308 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he gave his country 5 years of his life.  His discharge was unjust because he told his supervisor that his mother had a medical condition and gave him a doctor's note confirming her illness.  However, his chain of command told him it was not their problem, so he did what he had to do to take care of her.  Upon his return, his commander gave him the option of a discharge or a court-martial.  He got scared and took the discharge.  

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 for a period of 4 years on 25 August 1980 and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He also executed a 3-year reenlistment on 27 February 1984 and he attained the rank/grade of specialist four (SP4)/E-4.

3.  His records also show he served in Germany for 36 months and he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Army Good Conduct Medal, Army Service Ribbon, and Overseas Service Ribbon. 

4.  On 31 December 1985, he departed his unit in an absent without leave (AWOL) status and he was subsequently dropped from the rolls (DFR) of the Army on 20 January 1986.  He subsequently surrendered to military authorities at Fort Dix, NJ, on 11 March 1986.

5.  On 11 March 1986, he was interviewed by his chain of command in an attempt to determine why he went AWOL.  During the interview, he indicated that when he came down on orders, he asked to go to Fort Carson, CO.  He did not want to go to Germany because he only had one year left on his contract.  He also indicated that his mother was ill and he provided a doctor's statement in that regard.

6.  On 12 March 1986, court-martial charges were preferred against him for one specification of being AWOL.

7.  On 12 March 1986, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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 court-martial.

8.  In his request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any 

person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.

9.  On 20 March 1985, his immediate commander recommended approval of the request for discharge with the issuance of an under other than honorable conditions discharge.  He further remarked the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation.

10.  On 20 April 1986, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, and directed he receive an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 6 May 1986, the applicant was discharged accordingly.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows he was discharged for the good of the service - in lieu of a court-martial, with a characterization of service of under other than honorable conditions.  This form further confirms he completed a total of 5 years, 6 months, and 2 days of creditable active service and he had 71 days of time lost.

12.  There is no indication in his records that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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 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 discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  His records show he was charged with the commission of offenses 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 court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His mother's illness at the time is noted.  However, there is no evidence in the available records and he did not provide any substantiating evidence that shows he addressed such issue with his chain of command and/or other available support channels.  There were many other legitimate ways he could have addressed this issue had he chosen to use them.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20100007308



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)