IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100013114 


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 a general discharge.

2.  He states a chaplain in Germany helped him get emergency leave due to a family crisis.  The chaplain told him to stay away for 90 days and then turn himself in and he would receive an under other than honorable discharge that would automatically be upgraded to honorable in 90 days.  The chaplain lied to him about his discharge options.

3.  He provides a copy of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a National Archives and Records Administration (NA) Form 13038 (Certification of Military Service) issued on 1 April 2010

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 military records show he enlisted in the Regular Army (RA) on 19 July 1979, in pay grade E-1, for a period of 3 years.  He completed training and he was awarded military occupational specialty 64C (Motor Transport Operator).

3.  An NA Form 13038 provided by the applicant shows he was honorably discharged from the RA on 13 March 1982 in the rank/grade of specialist four (SP4)/E-4.  He subsequently reenlisted on 14 March 1982 for a period of 3 years.

4.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 9 April 1984, was initiated against the applicant for being absent without leave, having failed to return from ordinary leave which expired on 20 March 1984.

5.  The applicant was subsequently dropped from the rolls (DFR) of his unit on
19 April 1984.

6.  On 26 June 1984, the applicant surrendered to military authorities at Fort Devens, MA.  During an interview on 27 June 1984, he indicated that he did not want to stay in the service.  He also indicated that he went AWOL because he was having family problems with his wife.  It also appears he indicated he went home on ordinary leave; however, his wife would not go to Germany with him.

7.  A DD Form 458 (Charge Sheet), dated 27 June 1984, was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Training Center, Fort Dix, NJ.  He was charged with one specification of being AWOL from on or about 20 March 1984 to on or about 26 June 1984.

8.  On 29 June 1984, after consulting with counsel, the applicant voluntarily 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.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate; as a result of the 

issuance of such a discharge, he could be deprived of many or all Army and Veterans Administration benefits.  He further acknowledged there was no automatic upgrading or review of his discharge and any review by the Army Discharge Review Board (ADRB) or the ABCMR did not imply that his discharge would be upgraded.  He waived his rights and elected not to submit a statement in his own behalf.

9.  On 6 July 1984, his company recommended approval of his request with issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 10 July 1984, his intermediate commander also recommended approval with issuance of the same 

10.  On 17 July 1984, the appropriate separation authority approved the applicant's request.  He directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.

11.  He was discharged accordingly in pay grade E-1 on 10 August 1984, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, with a characterization of service of under other than honorable conditions.  He was credited with completing 2 years, 1 month, and 21 days of net active service during that enlistment and time lost from
20 March to 26 June 1984.

12.  There is no evidence of record and the applicant did not provide any evidence that a chaplain told him his discharge would be upgraded to honorable in 90 days after his discharge.

13.  There is no indication he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 specified a member who had 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 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, a discharge under other than honorable conditions was normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7b, specified 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.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded and he was advised that his discharge would automatically be upgraded in 90 days was carefully considered and found to be without merit.

2.  The evidence shows he failed to return from ordinary leave which expired on 20 March 1984.  On 27 June 1984, he was charged with AWOL from 20 March through 26 June 1984.  He stated that he did not want to stay in the service and he voluntarily requested a discharge for the good of the service – in lieu of court-martial.  In doing so he admitted guilt to the stipulated offense.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  He also acknowledged he understood he could be issued an Under Other Than Honorable Conditions Discharge Certificate and there was no automatic upgrading of his discharge.

3.  It appears his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.  He has provided no evidence to the contrary.  Therefore, it is concluded that his misconduct diminished the quality of his overall service below that meriting an upgrade of his discharge.  

4.  The Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge based on the passage of time.  Each case is considered based on its own merits and relief may be granted if it is determined that an error or an injustice exists.  He did not submit any evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100013114



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ABCMR Record of Proceedings (cont)                                         AR20100013114



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