BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110011971 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states he served honorably for 3 years and he was told if he reenlisted, he would receive a $20,000.00 reenlistment bonus.  He believes this was a lie.  He made a bad decision 28 years ago.  However, since he left the military, he has matured and he is economically viable in his community.  He is working as an over-the-road truck driver and as an informant for the Department of Homeland Security (DHS).

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and 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's record shows he enlisted in the Regular Army on 15 January 1980 and held military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  He served in Korea from 7 June 1981 to 9 April 1982.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 22 March 1983, he was absent without leave (AWOL) from his unit.  He returned to military control on 29 March 1983.

5.  On 31 March 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 22 to 29 March 1983.

6.  On 20 April 1983, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.

7.  On 21 April 1983, he was convicted by a summary court-martial of one specification of willfully disobeying a lawful order from a superior commissioned officer.  The court sentenced him to a reduction to the lowest enlisted rank, a forfeiture of pay, and confinement for 30 days.  The sentence was approved on the same date.

8.  On 18 May 1983, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.

9.  On 8 June 1983, he was again AWOL from his unit and he was subsequently dropped from the Army rolls as a deserter on 8 July 1983.  He was apprehended by civil authorities in Cincinnati, OH, for the civilian charge of possession of marijuana and was convicted and sentenced to 5 days in jail.  He was released to military control on 2 September 1983.

10.  On 16 September 1983, his command preferred court-martial charges against him for one specification of being AWOL from 8 June to 26 August 1983.

11.  On 16 September 1983, he consulted with legal counsel who advised him 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 UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

12.  In his request for discharge, he indicated he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, 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.

13.  On 23 September 1983, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

14.  On 29 September 1983, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 25 October 1983.

15.  His DD Form 214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 2 years, 6 months, and 7 days of active service and he had 94 days of lost time.

16.  On 27 May 1993, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

17.  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.  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, an under other than honorable conditions discharge is normally considered appropriate.

18.  Paragraph 3-7b of Army Regulation 635-200 states 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 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 trial by court-martial.  After consulting with counsel and being advised of his rights, 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.

2.  There is no evidence in his records and he did not submit any substantiating evidence that shows he was misled regarding reenlisting for a bonus or that his extensive history of misconduct was caused by being misled regarding such reenlistment bonus.

3.  His post-service maturity, professional work, and support to DHS are noted.  However, they are not sufficiently mitigating to grant him the requested relief.

4.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's 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 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)                                         AR20110011971



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ABCMR Record of Proceedings (cont)                                         AR20110011971



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