IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110019756 


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 under other than honorable condition discharge to a general discharge
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to list his foreign service in Grenada

2.  He states he was experiencing some marital problems and he had to leave his duty station to save his marriage.  He states he paid for his mistake and wishes the Army recognize his 2 years and 9 months of honorable service.

3.  The applicant provides his DD Form 214.

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 Regular Army on 22 February 1983.  He completed training and he was awarded military occupational specialty 71N (Traffic Management Coordinator).  He was assigned to Company C,
24th Aviation Battalion, Hunter Army Airfield, GA.

3.  On 15 July 1985, he departed his unit in an absent without leave (AWOL) status and on 14 August 1985, he was dropped from the rolls (DFR) of the Army as a deserter.  He returned to military control on 7 October 1985.

4.  On 15 October 1985, court-martial charges were preferred against the applicant for one specification of AWOL from 15 July to 7 October 1985.

5.  On 15 October 1985, the applicant consulted with legal counsel and he was advised 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily requested 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.

6.  He indicated he was making this request of his own free will and he 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 a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  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 Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.  Additionally, he elected not to submit a statement on his own behalf.

7.  On 14 November 1985, his immediate commander recommended approval with the issuance of an under other than honorable conditions discharge.

8.  On 20 November 1985, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was accordingly discharged on 6 December 1985.

9.  The DD Form 214 he was issued confirms he was discharged under the provision of Army Regulation 635-200, chapter 10, in lieu of court-martial with an under other than honorable conditions.  He completed 2 year, 6 months, and
23 days of creditable active service with 84 days of time lost.

10.  Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record) does not show he served in Grenada.

11.  His service record is void of any official orders (temporary duty orders, temporary change of station orders, or deployment orders) that show he served in Grenada.

12.  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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.  

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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "Service in (Name of Country Deployed) From (inclusive dates for example, YYYYMMDD - YYYYMMDD)" in item 18 (Remarks)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded and his DD Form 214 should list his service in Grenada.

2.  With respect to his discharge upgrade, the applicant’s record shows 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.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his service.

3.  Based on his misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  With respect to correction of his DD Form 214 to show his service in Grenada, there is no evidence of record and he did not provide any evidence that shows he served in Grenada.  In the absence of evidence showing he served in Grenada and other corroborating evidence, such as deployment orders, travel vouchers, temporary duty orders, there is an insufficient evidentiary basis for granting his 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)                                         AR20110019756



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ABCMR Record of Proceedings (cont)                                         AR20110019756



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