BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100030280 


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 did not have the option to appeal his discharge.

	a.  He states that he enlisted at the age of 17 without parental consent, without a high school diploma, and he had been in special education.

   b.  He adds that he sustained a head injury, fractured ribs, a shoulder injury, and injured ankles due to a utility box falling off the back of a truck and he was denied a 60-day sick slip for this incident.
   
   c.  He further states that he left his duty station and turned himself in at Fort Knox to receive an under other than honorable conditions discharge.

   d.  He also states he enlisted in 1983 and has wage and tax statements to support this but his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served during the period 26 February 1985 to 22 August 1986. 

3.  The applicant provides his DD Form 214 covering a period of active duty for training (10 June through 26 July 1984); his DD Form 214 covering his period of Regular Army active duty; and four pages of Porter County medical 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.  His records show he was born on 27 March 1965.  His military records show he enlisted in the Army National Guard around June 1983, completed initial entry training, and was awarded the military occupational specialty of combat engineer.  He enlisted in the U.S. Army Reserve (USAR) Delayed Entry/Enlistment Program (DEP) on 28 January 1985.  He was discharged from the USAR DEP and enlisted in the Regular Army on 26 February 1985 at 19 years of age for a period of 3 years.  The highest rank/grade he attained was private first class/E-3.

3.  On 2 July 1985, he accepted nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty.

4.  He provided a copy of a letter on Porter County Physicians, Inc., Valparaiso, IN letterhead, dated 11 June 1986, addressed to an unspecified medical officer at Fort Benjamin Harrison, IN.  The letter indicated the applicant was first seen in their office on 30 May 1986 with complaints relating to an injury sustained in April 1986 while he was stationed in Germany.  In the letter it was indicated that he had a trailer fall on his right upper shoulder and sustained a head injury in the left occipital parietal region.  The letter indicated he had loss of consciousness in the injury with bystanders reporting that he was out for 5 to 6 minutes.  The letter also indicated he had sustained a right ankle sprain at that time.  The letter stated that the applicant reported that the medical officer there told him there were no fractures and apparently the issue of the loss of consciousness was not given considerable attention at that time.

5.  On 30 June 1986, he was charged being absent without leave (AWOL) during the period 12 May to 20 June 86.

6.  On 30 June 1986, he consulted with counsel and in the absence of his records waived all defenses that may have become known had his defense counsel been able to review his records.  He admitted to being AWOL during the period 12 May to 20 June 86.

7.  His DA Form 2-1 (Personnel Qualification Record) shows he was also AWOL during the period 28 January to 5 April 1986.  This form also shows he did not graduate from high school.

8.  On 2 July 1986, he consulted with counsel and voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications that were attached to his request.  He acknowledged that he understood the elements of the offenses(s) charged and was guilty of the charge(s) against him or of a lesser included offense(s) which also authorized the imposition of a bad-conduct or dishonorable discharge.  He acknowledged he understood if his discharge request was approved he may be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effect of an under other than honorable conditions discharge, and that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.

9.  On 25 July 1986, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an under other than honorable conditions discharge.

10.  On 22 August 1986, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 2 months, 11 days of active service during this period.  This form further shows he completed 3 months and 18 days of prior active and 1 year, 6 months, and 20 days of prior inactive military service.  Item 29 (Dates of Time Lost during This Period) contains the entry, "860128-860405 860512-860619."

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he received NJP in July 1985 for failing to go at the time prescribed to his appointed place of duty.  He was also AWOL for two periods of time with a total of 107 days of lost time.

2.  He voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of a trial by court-martial.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged and he is not entitled to an honorable or a general discharge.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  He provided civilian medical documents indicating he sustained an injury in April 1986 while he was stationed in Germany.  However, this does not excuse the applicant's lengthy periods of AWOL, especially one of those AWOL periods occurred prior to his sustaining that injury.  He indicated he did not have a high school diploma when he enlisted.  However, many Soldiers without high school diplomas honorably complete their enlistments.

4.  Records show he was 19 years old when he enlisted in the Regular Army and 21 years old at the time he committed the offense for which he was discharged.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

5.  Regarding his statement that he enlisted in 1983, his DD Form 214 shows he had prior active and inactive service.  Therefore, there is no error on his DD Form 214 in this respect.

6.  In view of the foregoing, there is no basis for granting the 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)                                         AR20100030280



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ABCMR Record of Proceedings (cont)                                         AR20100030280



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