IN THE CASE OF:	  

		BOARD DATE:  30 July 2013

		DOCKET NUMBER:  AR20130001177 


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 that his under other than honorable conditions discharge be upgraded to general, under honorable conditions.  

2.  The applicant states, in effect, his discharge was based on one isolated incident made in a hasty moment.  He contends that he went absent without leave (AWOL) but it was a mistake made by a young foolish kid.  He completed his foreign service without any other incidents.  He adds that he would like his discharge upgraded so that he may be eligible for get some benefits.  

3.  The applicant provides a 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 4 October 1959.  He enlisted in the Regular Army on 17 February 1977 and he was awarded military occupational specialty 11B (Infantryman) upon completion of initial entry training.  

3.  He accepted nonjudicial punishment (NJP) on 19 July 1977 for being AWOL during the period 2-18 July 1977.

4.  He departed AWOL on 14 May 1979 and remained in an AWOL status until he was apprehended by civil authorities on 2 September 1980.  On 
11 September 1980, he was transported to Fort Bragg, NC where he was processed and released to his unit.

5.  On 16 September 1980, court-martial charges were preferred against him for the above AWOL offense.  

6.  On 17 September 1980, he consulted with legal counsel and he voluntarily 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, based on charges being preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

7.  He acknowledged that 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 acknowledged he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged he understood he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

8.  On 6 October 1980, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant be reduced to the lowest enlisted grade and that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 14 October 1980, the applicant was discharged accordingly.  He completed 2 years, 3 months, and 26 days of active service and his DD Form 214 shows accrual of 490 days of lost time.

10.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides in:

	a.  Chapter 10 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 discharge is normally considered appropriate.

	b.  Paragraph 3-7b 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 contends his discharge should be upgraded because it was based on one isolated incident when he was a young and foolish kid.  He also contends that he has made this request because he would like to obtain some benefits.  

2.  The applicant had previously accepted NJP for an AWOL offense.  Two years later, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes NJP, court-martial charges for being AWOL, and accrual of 490 days of lost time.  Based on his record of indiscipline, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  The ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for veterans' benefits.  Additionally, age is not a mitigating factor.  He completed his training and served for almost 2 years after his first AWOL incident without incident which shows he was mature enough to serve.  Furthermore, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service.

6.  Based on the foregoing, there is no basis to grant the requested relief.  

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)                                         AR20130001177



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ABCMR Record of Proceedings (cont)                                         AR20130001177



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