IN THE CASE OF:	  

		BOARD DATE:  20 August 2013

		DOCKET NUMBER:  AR20130002402 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he was led to believe he would have been courtmartialed, served time, and be "kicked out" of the service.  He regrets very much having gone absent without leave (AWOL) and knows it was the biggest mistake he ever made.  He was young at that time and has now grown, received his Bachelor of Science degree, married and has a beautiful family.  With an upgraded discharge, he will be able to qualify for a Department of Veterans Affairs (VA) home loan and purchase a home for his family. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 September 1986.

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 having had prior service, the applicant enlisted in the Regular Army on 2 March 1984 in military occupational specialty (MOS) 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows the following two AWOL periods:

* 20 May 1986 through 1 June 1986
* 19 June 1986 through 27 July 1986

4.  On 12 June 1986, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL during the period 20 May 1986 through 2 June 1986.

5.  On 31 July 1986, court-martial charges were preferred against the applicant for one specification of being AWOL from 19 June 1986 to 28 July 1986.

6.  On 31 July 1986, the applicant consulted with counsel and after being advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment under the Uniform Code of Military Justice (UCMJ), he voluntarily requested discharge for the good of the service in lieu of trial by courtmartial under the provisions chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

8.  On 15 August 1986, the separation authority approved the applicant's request for discharge and directed the issuance of a UOTHC discharge and reduction of grade to private/E-1.  On 17 September 1986, the applicant was discharged accordingly.  His DD Form 214 shows he completed 2 years, 4 months, and 25 days of creditable active military service during the period under review with 48 days of lost time.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 UOTHC is normally considered appropriate.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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 request to upgrade his discharge based on his post-service achievements and conduct was carefully considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

2.  The applicant's record confirms he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  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.  The available evidence shows a period of service marred with misconduct throughout his military service.  He had two instances of AWOL and accepted NJP under the provisions of Article 15 of UCMJ for AWOL from 20 May 1986 to 
2 June 1986.


4.  Based on his record of indiscipline the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either 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)                                         AR20130002402





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ABCMR Record of Proceedings (cont)                                         AR20130002402



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