IN THE CASE OF:	  

		BOARD DATE:  18 June 2013

		DOCKET NUMBER:  AR20120022288 


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 conditions discharge. 

2.  The applicant states:

* he spoke with his captain and he was told he would be receiving a general discharge due to his father's health issues at the time
* he feels lied to and betrayed by his chain of command because he was told his discharge would be general
* his father had health issues at the time; even the day he (the applicant) was supposed to ship out to training 
* while in basic training, he received updates regarding his father's health but when he got to advanced individual training (AIT), his father's health deteriorated and he was rushed to the hospital
* he took the first opportunity to go see his father but his chain of command reported him in an absent without leave (AWOL) status
* although he returned to duty, his father's health did not improve and he left AWOL again and also returned from AWOL on his own
* the captain who  handled his paperwork promised him a general discharge; he wants the wrong to be made right  

3.  The applicant did not provide any evidence. 



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 14 April 1989.  He completed basic combat training at Fort Jackson, SC.  He was subsequently reassigned to Fort Gordon, GA, for completion of AIT.

3.  On 16 October 1989, he departed his training unit in an AWOL status but he returned to military control on 6 November 1989.  

4.  On 7 November 1989, he again departed his training unit in an AWOL status but he returned to military control on 28 November 1989.  

5.  On 12 December 1989, he departed his training unit in an AWOL status and on 11 January 1990, he was dropped from the Army rolls as a deserter.  He surrendered to military authorities at Augusta, GA, on 6 February 1990.  He was attached to the U.S. Army Personnel Control Facility, Fort Knox, KY for processing.  

6.  On 12 February 1990, court-martial charges were preferred against him for one specification of AWOL from 12 December 1989 to 6 February 1990. 

7.  On 12 February 1990, the applicant consulted with legal counsel and 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 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.
8.  In his request for discharge he indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also:

* indicated he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or an under other honorable conditions discharge
* understood if his request for discharge was accepted, he could be discharged under conditions other than honorable conditions
* acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

9.  On 27 February 1990, his immediate commander recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

10.  On 9 March 1990, consistent with the applicant's chain of command's recommendations, 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 a court-martial.  He directed the applicant be reduced to the lowest enlisted grade (if applicable) and his service be characterized as under other than honorable conditions.  On 10 April 1990, the applicant was accordingly discharged.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 in the rank/grade of private/E-1 with a character of service of under other than honorable conditions.  This form further shows he completed 
8 months and 22 days of creditable active service with three periods of time lost (16 October to 5 November 1989, 7 to 27 November 1989, and 12 December 1989 to 5 February 1990).

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  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.  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.

	b.  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.

	c.  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 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 a 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.  Furthermore, his discharge accurately reflects his overall record of service.

2.  With respect to his arguments:

	a.  His father's deteriorating health at the time is noted.  But, there would have been many other legitimate ways to address the situation had he chosen to do so.  Instead, he willingly departed AWOL and he willingly returned.  Likewise, he willingly requested a discharge.  

	b.  Contrary to his contention that he was promised a general discharge, the available evidence clearly shows he consulted with counsel and he was advised of the implications of his decision which included his understanding that if his discharge request was accepted, he may receive an under other than honorable conditions character of service. 

	c.  Also contrary to his contention that he was promised a general discharge by his captain, even if such a promise was made, the captain could only recommend a character of service, he did not have the authority to make a final determination of the characterization of service.  Only the separation authority may direct or order the final characterization of service. 

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120022288





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ABCMR Record of Proceedings (cont)                                         AR20120022288



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