IN THE CASE OF:	  

		BOARD DATE:	    1 October 2013

		DOCKET NUMBER:  AR20130004099 


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 joined the Army to be a helicopter mechanic; however, he was told he would be better off joining the infantry and to change his military occupational specialty (MOS) to helicopter mechanic at a later date.  He   trusted his recruiter when he was told he could change his MOS after 6 months.  After completing basic training he was told he was going to have to spend 
4 years in the infantry.  Being young and stupid, he quit the Army.  He subsequently built an airplane with his father; however, he continues to have difficulty with employment due to his discharge.

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 on 24 July 1964 and he enlisted in the Regular Army at 20 years, 1 month, and 28 days of age on 20 September 1984.  He completed training and was awarded MOS 11B (Infantryman).

3.  On 2 May 1985, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 19 April through 29 May 1985.

4.  On 31 May 1985, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily 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.

5.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.

6.  On 27 June 1985, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge.  On 14 August 1985, the applicant was discharged accordingly.  He completed 9 months and 15 days of net active service.  He had lost time for the period 19 April through 28 May 1985.

7.  There is no documentation in the applicant's records that he was told by his recruiter that he could change his MOS after 6 months.  

8.  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.

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

	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 contention that his discharge should be upgraded to an honorable discharge was carefully considered and it was determined to be without merit.

2.  There is no evidence in the applicant's records nor did he provide any evidence to support his contention that he was told by his recruiter that he could change his MOS after 6 months.  

3.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  There is no evidence he was coerced into signing any documents.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  Evidence shows he 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.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge to either an honorable or a general discharge.

6.  With respect to his age and maturity, the applicant was over 20 years of age at the time of his enlistment.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130004099





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ABCMR Record of Proceedings (cont)                                         AR20130004099



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