IN THE CASE OF:	  

		BOARD DATE:	    8 October 2013

		DOCKET NUMBER:  AR20130003615 


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 under other than honorable conditions (UOTHC) discharge to a general under honorable conditions (GD) discharge or an honorable discharge (HD).

2.  The applicant states he believes the record to be unjust because he was taking care of his elderly grandmother and asked for authorized leave which was denied.  He had no choice but to go absent without leave (AWOL).  He deserves an HD because he now works for the Veterans Hospital in New York City.

3.  The applicant provides information reports from the Department of Veterans Affairs (VA).

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 24 July 1977 and was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  The applicant's records show the following awards:

* Expert Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar
* Army Good Conduct Medal
* Army Service Ribbon
* Noncommissioned Officer Professional Development Ribbon

4.  On 21 August 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for writing bad checks on two occasions, wrongfully appropriating a United States Army issued treasury check, engaging in nonprofessional social activity with a member of the United States Delayed Entry Program, assaulting a person, and wrongfully failing to go to his appointed place of duty.

5.  On 1 October 1985, the applicant’s status changed from present for duty (PDY) to AWOL when he departed his Fort Hamilton, NY unit.  On 30 October 1985, his status changed from AWOL to dropped from the Army rolls (DFR) as a deserter.  On 18 March 1986, he returned to military control. 

6.  Since, a DD Form 458 (Charge Sheet), dated 19 March 1986, shows court-martial charges were preferred against the applicant for one specification of violating Article 86 of the UCMJ for AWOL for the period 1 October 1985 through 18 March 1986.

7.  On 19 March 1986, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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. 

8.  In his request for discharge, he acknowledged:

	a.   he was making this request of his own free will and had not been subjected to any coercions whatsoever by any person;
	b.  he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he understood if the discharge request was approved, 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 law;

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

	e.   he elected not to submit a statement in his own behalf.

9.  On 4 April 1986, his unit commanders recommended approval of the discharge for the good of the service with the issuance of a UOTHC.

10   On 21 April 1986, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with a UOTHC discharge and reduction to the lowest enlisted grade.  On 20 May 1986, he was discharged accordingly.  His DD Form 214 shows he completed a total of 10 years,
6 months, and 11 days of creditable active service with 166 days of lost time.

11.  He provides multiple VA Information reports depicting his Veterans status. 

12.  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.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in part, 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.

	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 with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trail by court-martial which may have resulted in a felony conviction.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his argument, his continued post-service occupation with the veteran’s hospital is noted.  However, it does not sufficiently mitigate and/or does not negate the serious charges preferred against him. 

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders 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)                                         AR20130003615



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ABCMR Record of Proceedings (cont)                                         AR20130003615



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