IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130002234 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was discharged under other than honorable conditions more than 25 years ago.

3.  The applicant provides no additional documentary evidence in support of his application.

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 on 3 January 1985 for a period of
3 years.  He was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).

3.  On 22 August 1985, court-martial charges were preferred against the applicant for being absent without leave from 3 July 1985 to 15 August 1985.

4.  The applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

   a.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Conditions Discharge Certificate.

	b.  He was advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

   c.  He indicated he did not desire a physical evaluation prior to separation.

	d.  The applicant and his counsel placed their signatures on the document.

5.  The applicant's commander recommended approval of the applicant's request for discharge with service characterized as under other than honorable conditions.

6.  The separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

7.  The applicant's DD Form 214 shows he was discharged on 4 October 1985 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  It also shows he completed 7 months and 
20 days of net active service.

8.  On 6 December 1996, the Army Discharge Review Board determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request for upgrade of his discharge was denied.
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.  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.  Chapter 3, 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.  Chapter 3, 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 contends that his discharge under other than honorable conditions should be upgraded because he was discharged more than 25 years ago.

2.  The evidence of record shows the applicant was absent without leave from
3 July 1985 to 15 August 1985 and that he elected to request discharge in lieu of being court-martialed.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

4.  The applicant was AWOL for a total of 43 days and he elected to request discharge in lieu of being court-martialed.

   a.  He completed less than 8 months of his 3-year active duty service obligation.

   b.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or an under honorable conditions (general) discharge.
   
5.  Therefore, there is an insufficient basis for granting 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)                                         AR20130002234



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ABCMR Record of Proceedings (cont)                                         AR20130002234



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