IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130001103 


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 under honorable conditions.

2.  He states he was an excellent Soldier in Basic Combat Training (BCT) and Advanced Individual Training (AIT).  Upon arrival at his first duty station a noncommissioned officer (NCO) who was not in his chain of command began harassing him "really badly."  He reported the NCO repeatedly, but nothing was done.  One day he snapped, left, and didn't go back.  He was young and did not realize what he was doing or the long-term consequences of his actions.  He cannot get a good job, much less a government job.  He is looked at with scorn and feels shame and embarrassment.  He pleads for a pardon of the mistake he made when he was still just a teenager and that he be granted relief from his shame and ignorance.  He states he believes more than 30 years should be a "sufficient sentence" for his mistakes.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was born on 24 June 1961.  He enlisted in the Regular Army at age 18, on 9 October 1979.  After completing BCT and AIT, he was awarded military occupational specialty 94B (Food Service Specialist).  On or about 
28 February 1980, he was assigned to principal duty as a cook with a unit at Fort Benning, GA.  

3.  A DD Form 458 (Charge Sheet), dated 23 February 1982, shows he was charged with being absent without leave (AWOL) from 2 June 1980 to 9 February 1982.  

4.  On 24 February 1982, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  

5.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He acknowledged:

	a.  By submitting the request, he was acknowledging he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.

	b.  Under no circumstances did he desire further rehabilitation as he had no desire to perform further military service.

	c.  He understood that as a result of his request he could be discharged under other than honorable conditions.

	d.  As a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under Federal and State laws.

	e.  He understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

6.  On 24 February 1982, his commander recommended approval of his request for discharge and that he receive an under other than honorable conditions discharge.  The commander noted, in part, the applicant stated the 617 days of lost time he incurred was due to problems that he had with NCOs in his unit.  The applicant alleged he had been harassed, physically struck, and generally abused.  A check with the applicant's former unit failed to locate anyone who remembered the incidents.  

7.  On 17 March 1982, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an Under Other than Honorable Conditions Discharge Certificate.  On 30 March 1982, he was discharged as directed.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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, 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 3-7b 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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.
3.  He states he believes more than 30 years should be a "sufficient sentence" for his mistakes.  The passage of time is not a basis for upgrading a properly issued discharge.  He should note that he was not sentenced.  By voluntarily requesting an administrative discharge, he chose to forego court-martial proceedings that may have resulted in a sentence, or acquittal.  The record shows he was fully aware of the implications of his request.  

4.  He has provided no documentary evidence substantiating his claim that he was harassed, and his record contains no evidence of the alleged harassment.  Even if such evidence were available, it would not be a basis for excusing his unauthorized absence of more than 600 days.  

5.  The applicant was age 18 when he enlisted.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to 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)                                         AR20130001103



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ABCMR Record of Proceedings (cont)                                         AR20130001103



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