IN THE CASE OF:	  

		BOARD DATE:	 16 December 2010 

		DOCKET NUMBER:  AR20100016220 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was treated harsher than others of equal rank and experience.  His mitigating conditions were not taken into consideration.  He adds that his mother died when he was young and he had two sisters who also passed away within a short period of time.  He struggled with depression and although he received counseling, this did not help.  He was very distraught and could not continue with daily activities constructively.  The current character of service has prevented him from receiving any benefits.

3.  The applicant did not provide any additional documents.

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 on 18 October 1990 and he held military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  His records further show he was awarded the National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Parachutist Badge.

4.  On 23 July 1993, the applicant's immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him citing a previous incident of disobeying a lawful order, a conduct that was detrimental to the order and discipline of the unit, and an arrest for assaulting a female.  He was provided with a copy of this certificate but he elected not to submit a statement in his own behalf.  The DA Form 4126-R was ultimately approved by his battalion commander 26 July 1993.  On the same date, the applicant acknowledged receipt of the approved action and he indicated that he would appeal the Bar to Reenlistment.  However, there is no evidence of record that shows he submitted an appeal.

5.  On 3 August 1993, he departed his unit in an absent without leave (AWOL) status, and on 2 September 1993 he was dropped from the rolls (DFR) of his unit as a deserter.  He ultimately surrendered to military authorities at Warren, MI, on 22 September 1993 and he was returned to military control at Fort Knox, KY.

6.  On 23 September 1993, a DD Form 458 (Charge Sheet) was initiated preferring court-martial charges against the applicant for one specification of violating Article 85 (Desertion) of the Uniform Code of Military Justice (UCMJ) for being AWOL from 3 August to 2 September 1993.

7.  The applicant's record is void of the facts and circumstances surrounding his discharge.  

8.  His record also contains the following documents:

	a.  A memorandum wherein the applicant declared that he was advised by his defense counsel that the Government had not received his records with which to obtain a conviction by a court-martial and that he was advised that his counsel could not completely advise him without his records.  Nevertheless, he knowingly, willingly, and voluntarily declared that he was AWOL from 3 August to 22 September 1993.  He added that he made this admission so he could be processed out of the Army.  Additionally, his counsel explained to him the ramifications of his decision, the type of discharge, and its effect.  

	b.  Orders 006-00212, issued by Headquarters, U.S. Army Armor Center, Fort Knox, discharging the applicant from the Army under the provisions of Army Regulation 635-200, chapter 10, effective 24 January 1994.

	c.  A properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 24 January 1994, under the provisions of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial, with service characterized as under other than honorable conditions.  He completed a 3 years, 1 month, and 18 days of total active service with 48 days of time lost.

9.  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.

10.  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, an under other than honorable conditions discharge is normally considered appropriate.

11.  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.

12.  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.

13.  According to the Manual of Courts-Martial, Article 85 of the UCMJ applies to any member of the armed forces who without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States.  The maximum punishment when desertion is terminated by apprehension is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.  In all other terminations, a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 

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 458 that shows he was pending court-martial charges for being a deserter.  Additionally, his records contain a properly-constituted DD Form 214 that shows he was discharged on 24 January 1994 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.

2.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed all requirements of law and regulation were met and his rights were fully protected 
throughout the separation process.  He has provided no evidence that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his last enlistment. 

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100016220



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ABCMR Record of Proceedings (cont)                                         AR20100016220



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