IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130003283 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* he had an unauthorized absence as a result of caring for his sick child while he was serving on active duty
* he was a young man at the time and he thought his actions were considered reasonable
* his wife was starting a new job and she could not take off to take care of his 3-year old daughter 
* he requested leave to attend to these family matters but he was denied leave
* after the denial of his leave, he went on an unauthorized absence (absent without leave (AWOL)) 
* prior to this incident, his service had been honorable

3.  The applicant provides no additional evidence.

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's records show he was born in April 1958 and he enlisted in the Regular Army at 24 years of age on 9 April 1982.  He held military occupational specialty 11B (Infantryman). 

3.  He served in Germany from July 1982 to July 1984.  He was awarded or authorized the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar.  He attained the rank/grade of specialist four/E-4. 

4.  On 6 April 1984, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order and unlawfully punching a Soldier and kicking him numerous times while he was on the ground. 

5.  On 23 April 1985, at age 27, he departed his Fort Lewis, WA, unit in an AWOL status.  He was apprehended and returned to military control on 13 May 1985. 

6.  On 28 May 1985, court-martial charges were preferred against him for:

* one specification of being AWOL from 23 April to 13 May 1985
* one specification of failing to go at the time prescribed to his appointed place of duty
* three specifications of disobeying a lawful order from his first sergeant and/or noncommissioned officers
* one specification of making a false official statement with intent to deceive

7.  On 29 May 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:
	a.  He was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and

	d.  He stated that under no circumstances did he desire further rehabilitation or to perform further military service.

8.  On 12 June 1985, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 18 June 1985, the applicant was discharged accordingly.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 3 years, 1 month, and 20 days of creditable active service.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

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

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

	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 applicant's record shows he was charged due to the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  The applicant was 24 years of age when he enlisted and 27 years of age when he committed his offense.  However, nowhere is there evidence that his misconduct was a result of his age or that he was any less mature than other Soldiers of the same age who successfully completed their terms of service.

3.  There is no evidence in the applicant's records and he provides none that shows he requested leave to care for his sick child and his chain of command denied him leave.  Furthermore, he could have requested trial by a court-martial if he thought he had extenuating circumstances that led to his unauthorized absence.  He was advised of his rights and knew the implications of his choice.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  

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.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge 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)                                         AR20130003283



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ABCMR Record of Proceedings (cont)                                         AR20130003283



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