BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100016231 


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 (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states he returned to the United States from an assignment in Berlin, GE and he had 45 days of leave en route to his new assignment at Fort Lewis, WA.

   a.  While traveling to Fort Lewis by privately-owned vehicle (POV), his car broke down near Boise, ID.  He was 7 hours late reporting to Fort Lewis and he was told at the Reception Station he would be given nonjudicial punishment (NJP) at his new unit.

	b.  After 3-4 days at the Reception Station, he was given orders and told to report to his new unit of assignment.  He began walking and a Soldier on a motorcycle offered him a ride.  Instead of taking him to his new unit, the Soldier left post and did not return until the following day.

	c.  On reporting to his new unit, he was told he didn't exist, so he left.  Thereafter, he tried to report on multiple occasions with the same result, no record of him ever being a Soldier.

	d.  He was arrested by civilian police in Olympia, WA on a driving under the influence charge and he was told the Army had a detainer lodged against him.  He was held for the military, but no one came to get him.  The civilian police finally released him and he returned to military control on his own.  He was given a haircut and a meal card and assigned a bunk with no mattress or bedding.

	e.  Three days later he was returning to the barracks after lunch when he was told the First Sergeant wanted to see him.  He kept walking and he was grabbed from behind, slammed against a van, handcuffed, and apprehended.

	f.  He ended up at Fort Ord, CA where he was "disregarded, disrespected, dismissed, and discharged."

3.  The applicant provides a self-authored statement.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 20 February 1981 for a period of 6 years.  On 14 April 1981, he was discharged from the USAR DEP and he enlisted in the Regular Army on 15 April 1981 for a period of 3 years.

3.  The applicant completed One Station Unit Training (OSUT) at Fort Benning, GA and he was awarded an infantry military occupational specialty.  He was assigned to Headquarters and Headquarters Company, 4th Battalion,
6th Infantry, Berlin Brigade with duty as an infantryman.

4.  On 21 January 1983, the applicant departed Germany en route to Fort Lewis. The record shows he reported to Fort Lewis and he was assigned to Company B, 2nd Battalion, 47th Infantry on 4 April 1983.  There is no indication he was absent without leave (AWOL) at any point prior to 4 April 1983.


5.  The applicant's record shows he was AWOL during the following periods:

* 19830405 - 19830702 (89 days)
* 19830704 -19831023 (112 days)
* 19831026 - 19840229 (127 days)

6.  The applicant's record shows he returned, or was returned, to military control at Fort Ord on 1 March 1984.

7.  Court-martial charges were preferred against the applicant and, after consulting with legal counsel on 23 March 1984, he requested separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In so doing, he acknowledged that he was guilty of the charge(s) against him, which authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that he had no desire for rehabilitation or further military service, and that he understood the nature and consequences of the UOTHC discharge that he might receive.  He declined to submit a statement in his own behalf.

8.  On 9 May 1984, the approving authority approved the applicant's request for discharge.  He was separated with a UOTHC discharge on 18 May 1984.

9.  On 1 November 1986, the applicant requested a discharge upgrade from the Army Discharge Review Board (ADRB).  At that time, his explanation was that his mother was seriously ill and he went AWOL to be home with her.  ADRB records show his request was denied on 8 January 1987 and on 23 April 1987.

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, a discharge UOTHC is normally considered appropriate.

11.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an HD 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.

	b.  Paragraph 3-7b states that a general discharge (GD) 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 HD.  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 was AWOL for 328 days.  The explanation he provides is not creditable.  When he finally faced court-martial charges and a possible federal felony conviction with a possible bad conduct or dishonorable discharge, he opted to request discharge for the good of the service in lieu of trial by court-martial.  His request was granted and he was discharged accordingly.

2.  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.

3.  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 and the punitive discharge that he might have received. 

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

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)                                         AR20100016231



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ABCMR Record of Proceedings (cont)                                         AR20100016231



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