IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100025184 


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.

2.  The applicant states, in effect, he served faithfully and proudly and he should not be penalized for one mistake.  He missed his flight to Germany; however, when he called his unit he was told he was considered to be in an absent without leave (AWOL) status.  He was young and naïve; he got scared and he went home.  He ultimately contacted Fort Sam Houston, TX, Military Police officials who picked him up.  Prior to this he had no blemishes on his records.  He then faced a court-martial or a jail sentence.  He elected to be discharged from the Army.  Nevertheless, he did not understand the consequences of his decision.  If he had to do it all over again, he would elect to go to jail.  He has lived with the shame of his discharge and he would like his records corrected. 

3.  The applicant did not provide any additional evidence.

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 was born on 4 March 1961 and he enlisted in the Regular Army for 3 years, at age 19, on 27 June 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  

3.  He served in Germany from 9 October 1980 to 25 October 1983 and attained the rank/grade of specialist four/E-4.  While in Germany, he executed a 6-year reenlistment in the RA on 3 October 1983.

4.  His records further show he was awarded the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Grenade Bar, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Good Conduct Medal, Army Achievement Medal, and Drivers Badge.

5.  On 27 February 1985, he failed to report to his gaining unit at Fort Sill, OK, and accordingly, he was reported in an AWOL status.  He was apprehended by military authorities at Port Lavaca, TX, and returned to military control on 10 April 1985.

6.  On 15 April 1985, court-martial charges were preferred against the applicant for one specification of being AWOL from 27 February to 10 April 1985.

7.  On 17 April 1985, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, 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 trial by court-martial.

8.  In his request for discharge, the applicant indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledged he had been advised of the implications attached to it.  He also acknowledged he understood 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 if the discharge request was approved, he could be issued an under other than honorable conditions discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also elected not to submit a statement in his own behalf.

9.  On 19 April 1985, his immediate commander recommended approval of the applicant's request with an under other than honorable conditions character of service.  The immediate commander remarked that the applicant's conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or a dishonorable discharge.

10.  On 26 April 1985, 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 trial by court-martial.  He directed that the applicant be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.  On 15 May 1985, he was accordingly discharged.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service - in lieu of trial court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 4 years, 9 months, and 6 days of creditable active service and he had 42 days of time lost.

12.  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.

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.  Paragraph 3-7a of Army Regulation 635-200 states 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.  Paragraph 3-7b of Army Regulation 635-200 states 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 discharge should be upgraded.

2.  The evidence of record shows he was 19 years of age at the time of his enlistment and nearly 24 years of age at the time of his AWOL offense.  However, there is no evidence in the available records that show he was any less mature than other Soldiers of the same age who honorably completed their terms of service.  Therefore, the applicant's age is not sufficiently mitigating to support his request.

3.  His records show he was charged with the commission of an offense 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.

4.  The applicant was given the option between trial by a court-martial (which could have carried a bad conduct discharge or a dishonorable discharge with possible confinement) and a voluntary discharge in lieu of trial by a court-martial. He chose the discharge.  

5.  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, the applicant is not entitled to an upgraded 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)                                         AR20100025184



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ABCMR Record of Proceedings (cont)                                         AR20100025184



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