BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013969 


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 a more favorable discharge that will qualify him for benefits.

2.  The applicant states that he served honorably from 1985 to 1988 and was on his second enlistment when he went absent without leave (AWOL); however, his actions did not put his unit in harm’s way.  He goes on to state that he also served in the Rhode Island Army National Guard from April 1995 to February 2002 and was the state Soldier of the Year.  He continues by stating that he made a young mistake and he asks that all of the facts be taken into consideration.  He further states that he neglected to follow through on his appeal because he was young and naïve in the ways of the world and justice. 

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 17 August 1966 and enlisted in the Regular Army on 10 September 1985 for a period of 3 years and training as a single channel radio operator.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Gordon, Georgia before being transferred to Fort Hood, Texas on 22 March 1986.

3.  On 17 March 1988, while serving in the pay grade of E-4, he reenlisted for a period of 2 years.

4.  The applicant went AWOL from 28 June to 5 July 1988, from 12 July to
2 August 1988, and from 5 August to 7 August 1988.  Upon his return on
8 August 1988 he was remanded to the custody of civil authorities for an outstanding warrant for bad checks.

5.  On 10 August 1988, charges were preferred against the applicant for the AWOL offenses.  

6.  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 and he declined a separation physical/medical examination.  

7.  The appropriate authority approved his request for discharge on 25 August 1988 and directed that he be discharged with the issuance of an under other than honorable conditions discharge.

8.  Accordingly, he was discharged under other than honorable conditions on 29 August 1988, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 10 months and 18 days of total active service and had 33 days of lost time due to AWOL.
9.  On 11 October 1989, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was inequitable because he had only one isolated incident during his service.  After reviewing all of the facts and circumstances the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade on 31 May 1990.

10.  The applicant again applied to the ADRB in 1995 and was granted a personal appearance before that board’s traveling panel in New York; however, he failed to respond to the notification of personal appearance and his case was closed without action.

11.  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.

12.  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.

13.  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 discharge 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 which may have resulted in 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 his repeated misconduct, the lack of mitigating circumstances at the time, and his undistinguished record of service.  His service simply did not rise to the level of an honorable or a general discharge.

4.  Accordingly, there appears to be no basis to grant the applicant’s request for an upgrade of his 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)                                         AR20110013969





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ABCMR Record of Proceedings (cont)                                         AR20110013969



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