IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20110000766 


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 discharge to an honorable or a general discharge.

2.  The applicant states he was young and immature at the time and he did not realize the extent of his actions.  He goes on to state that the embarrassment he felt over his past mistakes and the dishonor to his unit was more than he could bear.  He continues by stating that his life changed when his father died in 1981 and in order to cope with his loss, he turned to drugs and alcohol.  He also states that he wanted to stay in the Army because of the birth of his son but he was offered two choices, accept discharge or go to prison.

3.  The applicant provides a self-authored statement explaining his request and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 24 July 1957.  He enlisted in the Regular Army in Shreveport, LA on 5 March 1979 for a period of 4 years, training as an infantryman, assignment to the 9th Infantry Division, and a cash enlistment bonus.

3.  He completed his basic training at Fort Knox, KY and his advanced individual training at Fort Benning, GA before being transferred to Fort Lewis, WA.  He was advanced to the pay grade of E-3 on 5 March 1980.

4.  On 21 May 1980, nonjudicial punishment (NJP) was imposed against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana.

5.  On 21 August 1980, NJP under Article 15, UCMJ, was imposed against him for being absent without leave (AWOL) from 11 August to 15 August 1980.

6.  On 18 November 1981, he was transferred to Boeblingen, Germany for assignment to an infantry company.

7.  On 5 February 1982, he went AWOL and remained absent as a deserter until he was apprehended by civil authorities.  He was returned to military control at Fort Sill, OK on 28 November 1983, where charges were preferred against him for the AWOL offense.

8.  On 2 December 1983, after consulting with defense counsel, the applicant submitted a request for 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.  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 charge against him or of lesser-included offense(s) 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 further declined to submit a statement or explanation in his own behalf. 

9.  The appropriate authority approved his request for discharge with the issuance of an under other than honorable conditions discharge.

10.  Accordingly, on 11 January 1984, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 3 years and 16 days of creditable active service with 661 days of time lost due to being AWOL.  

11.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  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.

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.  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'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.  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 charge against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence, his undistinguished record of service, the absence of mitigating circumstances at the time, and the fact his misconduct started in 1980, before his father died in 1981.  His service simply did not rise to the level of an honorable or a general 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)                                         AR20110000766



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ABCMR Record of Proceedings (cont)                                         AR20110000766



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