IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100030423 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show that he was discharged in the pay grade of E-3 and that he was not court-martialed and that he be paid all back pay and allowances due him.

2.  The applicant states that his DD Form 214 incorrectly reflects that his pay grade was E-1 and that he was court-martialed; however, he was serving in the pay grade of E-3 and he was never court-martialed.  Accordingly, he desires his discharge to be upgraded to honorable and his DD Form 214 corrected to reflect his pay grade as E-3 and to show he was not court-martialed.

3.  The applicant provides no additional documents with his application which was received from a California Department of Corrections facility.

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 Regular Army with a moral waiver in Los Angeles, California on 9 October 1979 for a period of 3 years, training as an infantryman and assignment to Europe.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a light weapons infantryman at Fort Benning, Georgia before being transferred to Germany on 28 January 1980.  He was advanced to the pay grade of E-2 on 9 March 1980, the highest grade he attained.

3.  On 21 May 1980, he went absent without leave (AWOL) and remained absent until he was apprehended by civil authorities in Long Beach, California and was returned to military control at Fort Ord, California on 8 November 1980.

4.  The applicant again went AWOL on 4 February 1981 and remained absent until he was returned to military control at Fort Ord on 26 March 1981 and charges were preferred against him for the AWOL offense on 12 June 1981. 

5.  On 26 January 1981 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement or explanation in his own behalf.  His counsel went to great lengths to counsel him regarding the procedures for applying to the Army Discharge Review Board (ADRB) and this Board and the likelihood of receiving an upgrade of his discharge.

6.  On 19 June 1981, the appropriate authority (a major general) approved his request for discharge and directed that he be discharged under other than honorable conditions.  He also directed that the applicant be reduced to the lowest enlisted grade (E-1).

7.  Accordingly, he was discharged under other than honorable conditions on 9 July 1981 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 1 year, 1 month and 19 days of total active service and had 222 days of lost time due to AWOL.

8.  On 28 September 1995, the applicant applied to the ADRB for an upgrade of his discharge.  He contended at that time that he went AWOL because he had become an alcoholic and because he had a bad childhood.  On 4 February 1997, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade.  The available evidence shows that the applicant was incarcerated on 19 June 1997.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.  

11.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it states that when the separation authority determines a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is correct in stating he was not court-martialed.  However, that is because he requested separation in lieu of court-martial.  His voluntary request for separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated offenses, the length of his absence, and his undistinguished record of service.  His service simply did not rise to the level of a discharge under honorable conditions.

4.  The applicant’s DD Form 214 also properly reflects that he was reduced to the pay grade of E-1 and that he was discharged in lieu of trial by court-martial and the applicant has failed to provide evidence to show otherwise.

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)                                         AR20100030423





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ABCMR Record of Proceedings (cont)                                         AR20100030423



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