BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20130000551 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* he served his country for 5 years with an exemplary service record, patrolling the East/West German border (combat zone)
* he was young and immature at the time; he was going through a divorce and he was emotionally upset 
* the Army had placed him on assignment to return overseas but he did not want to leave his family
* he chose to get out instead of taking the court-martial in order to be with his family - specifically his kids
* he was unaware that the characterization of his service would be under other than honorable conditions
* he has worked at a national lab for over 20 years since his discharge and he is also a volunteer at the local police "Search and Rescue" squad 
* he served his country proudly and he would do it again if he could; this character of service has haunted him for years; he wants closure

3.  The applicant provides no additional 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 was born in October 1959 and he enlisted in the Regular Army at almost 20 years of age on 12 September 1979.  He held military occupational specialty 19D (Cavalry Scout).

3.  He served in Germany from 21 January 1982 to 6 September 1983, during which he reenlisted on 12 October 1983, at almost 24 years of age, and he attained the rank/grade of specialist four (SP4)/E-4.  

4.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Good Conduct Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

5.  On 11 September 1984, at almost 25 years of age, he departed his Fort Sill, OK, unit in an absent without leave (AWOL) status and on 11 October 1984, he was dropped from the rolls as a deserter.  On 12 October 1984, he surrendered to military authorities at Fort Sill, OK. 

6.  On 16 October 1984, court-martial charges were preferred against him for one specification of being AWOL from 11 September to 12 October 1984. 

7.  On 17 October 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 by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  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 coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

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

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

8.  On 3 October 1984, his immediate and intermediate commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

9.  On 9 November 1984, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 20 November 1984, he was discharged accordingly.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 5 years, 1 month, and 8 days of creditable active service.

11.  On 4 February 1986, the Army Discharge Review Board reviewed his discharge and determined he was properly and equitably discharged.  Accordingly, it denied his request for a change in the character and/or reason for discharge.

12.  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.  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.

	a.  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.

	b.  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.  

2.  The applicant was almost 20 years of age when he enlisted, almost 24 years of age when he reenlisted, and almost 25 years of age when he committed his offense.  However, nowhere is there evidence that his misconduct was a result of his age or that he was any less mature than other Soldiers of the same age who successfully completed their terms of service.  In fact, he did successfully complete his first term of service.

3.  The Army does not have nor did it ever have a policy wherein a character of service is upgraded due to the passage of time.  The evidence of record clearly shows the court-martial charges were related to AWOL.  He was advised of his rights and knew the implications of his choice.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  


4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge 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)                                         AR20130000551





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ABCMR Record of Proceedings (cont)                                         AR20130000551



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