IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120021619 


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.

2.  The applicant states all parts prior to conclusion of his discharge were not properly reviewed by the company administrators and superiors at the time of the incident.  His commander disobeyed orders from the Red Cross.  Nevertheless, he has since grown from his youthful ways and has become an upstanding citizen of his community.

3.  The applicant provides:

* 2012 Department of Veterans Affairs (VA) request for outpatient services
* Letter from the VA
* 1983 Emergency Care and Treatment
* Request pertaining to military records
* Standard Form 93 (Report of Medical History)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* First page of his Request for Discharge for the Good of the Service
* Congressional correspondence
* Letters of support/character reference letters

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 records show he enlisted in the Regular Army on 9 November 1982.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 19E (Armor Crewman).  

3.  Subsequent to completion of training, he was reassigned to the 3rd Battalion, 70th Armor Regiment, Fort Polk, LA.  

4.  His records also show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 8 May 1984, disobeying a lawful order
* 14 May 1984, leaving his appointed place of duty without authority

5.  On 24 May 1984, he departed his unit in an absent without leave (AWOL) status but he returned to his unit on 22 June 1984.  

6.  On 22 June 1984, he departed his unit in an AWOL status and on 26 June 1984, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities in Alexandria, LA and returned to military control on 21 November 1984.  He was attached to Fort Sill, OK.

7.  Subsequent to his return from desertion, his command preferred court-martial charges against him for two specifications of AWOL from on or about 24 May 1984 to on or about 22 June 1984 and from on or about 22 June 1984 to on or about 21 November 1984.  

8.  On 5 December 1984, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense 

punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercions whatsoever by any person;

	b.  he understood 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 discharge or a dishonorable discharge;

	c.  he acknowledged he understood if the 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 Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law;

	d.  he stated that under no circumstances did he desire further rehabilitation or to perform further military service; and

	e.  he elected not to submit a statement in his own behalf.

9.  On 28 December 1984, the separation authority approved the applicant's request for discharge 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 and reduction to the lowest enlisted grade.  On 11 January 1985, he was discharged accordingly.

10.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 1 year, 8 months, and 8 days of creditable active service and he had lost time from 24 May to 21 June and 22 June to 20 November 1984. 

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

12.  He submitted:

	a.  VA request for outpatient services, dated 15 October 2012, related to unspecified sleep apnea. 

	b.  Letter, dated 24 March 2010, from the VA advising him that no personnel records were on file for him.  
	c.  Emergency care and treatment form, dated 26 June 1983, which shows he was involved in a motorcycle accident.  He was treated and sent home.  His condition was good upon release. 

	d.  Report of Medical History, dated 13 September 1983, wherein he stated he was in good health.

	e.  Congressional correspondence related to his request for an upgrade of his discharge. 

	f.  Support letters/character reference letters from individuals who opine the applicant is a unique and highly-intelligent man with a great attitude.  He is honest, truthful, and trustworthy.  He deserves an upgrade of his discharge. 

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in 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.

14.  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.  It 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.

15.  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 record shows he was charged with the commission of offenses 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.  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.  With respect to his arguments:

	a.  He contends that all parts prior to conclusion of his discharge were not properly reviewed.  It is unclear what parts he refers to or why he did not address such parts in a statement when he submitted his voluntary request for discharge. 

	b.  He contends the commander disobeyed orders from the Red Cross.  Both active duty and community-based military depend on the Red Cross to provide emergency communications that link them with their families back home, access to financial assistance in partnership with the military aid societies, information and referral and assistance to veterans.  However, the Red Cross does not fall under the Department of the Army and Red Cross officials have no authority over military personnel.  

	c.  His post-service growth and need for medical services are noted.  However, they are not sufficiently mitigating and/or do not negate the serious charges preferred against him.  His military service was marred with misconduct throughout and included two instances of NJP in addition to the court-martial charges.  He chose to go AWOL and he chose the voluntary discharge.  He could have elected trial by a court-martial if he believed there were extenuating circumstances.  

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade to either 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)                                         AR20120021619



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ABCMR Record of Proceedings (cont)                                         AR20120021619



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