IN THE CASE OF:	

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110012953 


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, in effect, an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states in 1990 a Reserve officer from the 639th Transportation Company contacted him about signing up for the active Reserve.  After meeting with the officer, he told him he was not interested and signed a form acknowledging the officer had spoken with him.  He did not read the form.  He later received a phone call informing him to report to the unit and when he failed to report he was apprehended by local police and retained in the city jail for two nights until he was picked up and transported to Fort Knox, KY.  After meeting with the first sergeant he was offered a general discharge and processed out of the Army.  He further states he was lied to and he has paid the price.  He previously served honorably and would like to have an honorable discharge and the events of the past expunged from his record. 

3.  The applicant provides a self-authored statement.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 17 November 1986.  He enlisted in the Regular Army on 18 August 1987.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty during this period was private first class (PFC)/E-3.  

3.  The applicant was honorably released from active duty on 17 August 1990 and assigned to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  The applicant was subject to active duty recall and/or annual screening.  Orders 75-1, issued by the U.S. Army White Sands Missile Range, NM, dated 16 May 1990, show his Reserve obligation termination date as
16 November 1994.

4.  Orders C-10-032987, issued by the USAR Personnel Center, dated 
24 October 1990, relieved the applicant from the USAR Control Group (Reinforcement) and assigned him to the 639th Transportation Company, effective 22 October 1990.

5.  Permanent Orders 15-10, issued by Headquarters, Second U.S. Army, Fort Gillem, GA, dated 15 November 1990, ordered the 639th Transportation Company to active duty on 17 November 1990 and instructed the unit to mobilize personnel and equipment to Fort Bragg, NC, effective 20 November 1990.

6.  On 23 January 1991, charges were preferred against the applicant for being absent without leave (AWOL) from his organization from 17 November 1990 to 14 January 1991.

7.  The applicant’s records contain DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence).  Item 13 (Continuation/Remarks) states the applicant was called informing him that his unit had been activated as of            17 November 1990.  The applicant stated, in effect, that he never signed anything to assign him to the 639th Transportation Company and even though the unit had orders, he was not going to report.

8.  On 23 January 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

9.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Having been advised that he may submit any statements he desired on his own behalf to accompany his request for discharge, the applicant did not submit any statements with his request. 

10.  On 2 April 1991, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge.  On 23 April 1991, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 3 months and 10 days of creditable active service during this period with 58 days of lost time.

11.  There is no indication that the applicant 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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of DVA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  At the time, an under other than honorable conditions discharge would normally be given an individual who was discharged for the good of the Service.  

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 contention that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support his request.  The evidence of record shows the applicant enlisted in the USAR DEP on 17 November 1986.  Since he enlisted after 1 June 1984, he incurred an 8-year MSO.  

2.  He subsequently enlisted in the Regular Army on 18 August 1987 and was honorably released from active duty on 17 August 1990 and assigned to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  The          DD Form 214 he was issued at the time of his discharge from active duty [period ending 17 August 1990] correctly reflected his Reserve Obligation Termination Date as 16 November 1994 and further stated that he was subject to active duty recall.  

3.  In October 1990, the applicant was relieved from the USAR Control Group (Reinforcement) and assigned to the 639th Transportation Company.  The applicant acknowledges he signed a form without reading it.  It is presumed he signed a form requesting transfer to a troop program unit.

4.  Permanent Orders 15-10 shows the applicant’s unit was ordered to active duty effective 17 November 1990 and the evidence shows the applicant was aware his unit was activated and willingly refused to report for mobilization.  The applicant was subsequently reported as AWOL from his unit from 17 November 1990 to 14 January 1991.  It appears he knew he still had a military obligation.  Had he reported to the unit he would have had a better chance of discovering the circumstances, and perhaps error, surrounding his assignment to the unit then than he does now, 20 years later.

4.  On 23 January 1991, he 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.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  The applicant's record of service shows he was AWOL 58 days.  Based on this record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110012953



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ABCMR Record of Proceedings (cont)                                         AR20110012953



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