IN THE CASE OF:	  

		BOARD DATE:	 1 August 2013 

		DOCKET NUMBER:  AR20130000746 


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 to a general discharge.

2.  The applicant states he was experiencing mental problems at the time.  He was advised by his superior officers to take the under other than honorable conditions discharge so he could get help.

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 enlisted in the Regular Army, in pay grade E-1, on 3 October 1979.  He completed training and he was awarded military occupational specialty 51B (Carpentry/Masonry Specialist).  He was advanced to pay grade E-2 on 15 March 1980.

3.  On 30 November 1981, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for operating a vehicle while drunk.  

4.  On 20 April 1982, he was convicted by a summary court-martial of one specification of failing to obey a lawful order by operating a vehicle on post with revoked driving privileges.  He was sentenced to a reduction to pay grade E-1, a forfeiture of pay, and 30 days extra duty.

5.  He was reported absent without leave (AWOL) on 2 June 1982 and was dropped from the rolls of his organization on 2 July 1982.  He returned to military control on 3 February 1985.

6.  On 6 February 1985, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, Fort Dix, NJ.  The applicant was charged with one specification of being AWOL from 2 June 1982 through 3 February 1985.

7.  On 6 February 1985, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could be discharged under other than honorable conditions.  He waived his rights and elected not to submit a statement in his own behalf.

8.  During his chapter 10 interview, the applicant stated he went AWOL because his wife was expecting and he needed to be home.  He told his first sergeant that he wanted out.  The first sergeant told him that he wasn't getting out until he went to jail, so he just left.  To solve his problem before going AWOL he went through all channels and even went as far as attending an out briefing and physical examination in order to be separated.

9.  On 11 and 12 February 1985, the applicant's company and battalion commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge.

10.  On 20 February 1985, the separation authority, a major general, 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 and reduction to private (PV1)/E-1.

11.  On 13 March 1985, he was discharged accordingly.  He completed 2 years, 9 months, and 10 days of creditable active service with time lost from 2 June 1982 to 2 February 1985.

12.  On 29 July 1988, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

	a.  Chapter 10 - a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished under Article 15 and convicted by a summary court-martial for misconduct.  He was subsequently charged with being AWOL for over 2 years.  

2.  He was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  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 overall record of service.

3.  His contentions and request for an upgrade of his discharge were carefully considered.  However, there is an absence of evidence to support his contentions that a mental condition prevented his satisfactory completion of service.  The evidence shows his misconduct and unsatisfactory performance diminished the quality of his service.  There is no documented history of a mental condition during his period of service which would have been assessed and disposed of through medical channels nor prevented the completion of his term of enlistment.  

4.  During his chapter 10 interview he stated he was needed at home because his wife was expecting and he wanted out of the Army, so he left.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence that would entitle him to an upgrade of this discharge.  

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130000746





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ABCMR Record of Proceedings (cont)                                         AR20130000746



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