BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130002038 


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 discharge under other than honorable conditions be upgraded to a fully honorable discharge and that he be restored to the pay grade of E-4.

2.  The applicant states, in effect, that he was under the influence of pain medications at the time for injuries sustained on active duty and that his otherwise exemplary record was not taken into consideration. 

3.  The applicant provides a five-page letter explaining his application and copies of his medical treatment records, personnel records, orders and certificates. 

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.  After serving in the U.S. Army Reserve he enlisted in the Regular Army on 
25 February 1988 for a period of 4 years, duty as a combat engineer and assignment to Fort Carson, Colorado.  He was transferred to Fort Carson for his first and only duty assignment.  He was advanced to the pay grade of E-4 on 
1 November 1988.

3.  On 18 October 1989, he went absent without leave (AWOL) and remained absent until 27 October 1989.  He again went AWOL on 5 November 1989 and remained absent in desertion until he surrendered to military authorities at the AWOL apprehension section at Fort Carson on 7 December 1989.  He was transferred to the Army Personnel Control Facility at Fort Ord, California, where charges were preferred against him for being AWOL during the periods 
18 October to 26 October and 5 November to 7 December 1989 and for missing movement on or about 18 October 1989.

4.  On 15 December 1989, after consulting with defense counsel, the applicant submitted a request for 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.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

5.  On 28 March 1990, the appropriate authority approved his request for discharge and directed the applicant be given an under other than honorable conditions discharge. 

6.  On 13 April 1990, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 2 years and 9 days of active service during his current enlistment and had 41 days of lost time due to AWOL.  He was reduced to the pay grade of E-1 at discharge.

7.  On 12 April 1993, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was inequitable given his overall record of service and that he was forced into taking a chapter 10 or be sent to jail for trumped up charges by his chain of command.  After reviewing the available evidence the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge on 8 November 1995.

8.  His official records and his discharge proceedings contained a DA Form 2823 (Sworn Statement) authored by the applicant in which he admitted that on or about the Monday night of deployment he went AWOL to Ft. McCoy, Wisconsin.

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

	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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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’s voluntary request for separation 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 regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances and he was properly reduced to the pay grade of E-1.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given his repeated absences and the lack of mitigating circumstances at the time.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge or restoring his rank to E-4.

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)                                         AR20130002038





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ABCMR Record of Proceedings (cont)                                         AR20130002038



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