BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110012401 


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 discharge or at least a general discharge.

2.  The applicant states that he served with the 75th Rangers and then the
82d Airborne, he was involved with a lady at home who was pregnant, and he felt he needed to be with her during the pregnancy, so he went absent without leave (AWOL).  He goes on to state that he was on his own working and doing well until the economy changed and now he is in need of Department of Veterans Affairs (VA) benefits.  He further states that his knee condition was caused by jumping out of airplanes and it keeps him from doing his job of laying hardwood floors.  He also states he is now more mature and he requests an upgrade of his discharge so he can obtain medical benefits.

3.  The applicant provides 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 8 March 1966 and he enlisted in the Regular Army in Charlotte, NC on 26 November 1985 for a period of 3 years under the airborne infantry training option.  He completed his one-station unit training and airborne training at Fort Benning, GA and he was transferred to Fort Bragg, NC on 1 May 1986 for assignment to Company A, 1st Battalion, 504th Parachute Infantry Regiment, 82d Airborne Division.

3.  On 1 July 1986, he went AWOL and he remained absent in desertion until he surrendered to civilian authorities in Lenoir, NC on 2 November 1986.  He was subsequently returned to military control and he was transferred to Fort Knox, KY where charges were preferred against him for being AWOL from 1 July to 2 November 1986, a period of 124 days.

4.  On 13 November 1986, 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.

5.  The appropriate authority approved the applicant's request for discharge on 18 November 1986 and directed his separation with an under other than honorable conditions discharge.

6.  Accordingly, on 19 December 1986, he was separated 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 8 months and 23 days of creditable active service with 124 days of time lost due to AWOL.

7.  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.

8.  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.

9.  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.

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.

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 to avoid a punitive discharge and having a felony conviction in 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 short record of service, and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request for 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)                                         AR20110012401



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ABCMR Record of Proceedings (cont)                                         AR20110012401



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