IN THE CASE OF:	  

		BOARD DATE:  10 September 2013

		DOCKET NUMBER:  AR20130004258 


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.

2.  The applicant states he had personal problems and received nonjudicial punishment on several occasions.  He went on emergency leave to Korea to attend the funeral of his infant child.  While in Korea, he requested an extension of his emergency leave which was denied.  His record is unjust because mitigating circumstances were not considered and there was a lack of consideration for his prior record.

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 enlisted in the Regular Army on 12 March 1986.  He completed basic and advanced individual training and he was awarded two military occupational specialties, 13B (Cannon Crewmember) and 55R (Ammunition Supervisor).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  The applicant's noncommissioned officer evaluation report for the period January 1991 to May 1991 shows the chain of command was aware of his personal problems.  

4.  On 19 March 1992, charges were preferred against the applicant for being absent without leave (AWOL) during the period 21 November 1991 through 11 March 1992.

5.  On 20 March 1992, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He elected to not make a statement on his behalf at the time of his request.

6.  He indicated he understood that by requesting discharge he was admitting guilt to the charge against him.  He further acknowledged he understood that if his discharge request were approved, he could be ineligible for many or all of the benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 15 May 1992, the separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  The applicant's DD Form 214 (Certificate of Release and Discharge from Active Duty) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 28 May 1992 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He completed 5 years, 10 months, and 14 days of creditable active military service with 112 days of lost time due to being AWOL.

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.

	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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  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.  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 for an upgrade of his discharge was carefully considered.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  Discharges under the provisions of this chapter are voluntary requests for discharge in lieu of trial by court-martial.

3.  There is no evidence that shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time or that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, administrative regularity must be presumed.

4.  The applicant's record does not contain evidence that he received nonjudicial punishment on numerous occasions as he stated.  However, based on the 112 days of lost time due to AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  In addition, his emergency leave would not have been extended by much more than 30 days; he was AWOL for 112 days.  His misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his 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 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)                                         AR20130004258



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ABCMR Record of Proceedings (cont)                                         AR20130004258



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