IN THE CASE OF:	  

		BOARD DATE:  24 October 2013

		DOCKET NUMBER:  AR20130004789 


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.

2.  The applicant states:

	a.  He was hurt in an accident while living off post.  He called in and told them he could not be moved, but they came and made him go on post to see an Army doctor.

	b.  He was placed in lockdown in the barracks while living off post and then they decided to put him out.  He fought it, but the company commander pushed it.

	c.  He was escorted by a sergeant during his out processing and then he went back home, but he did not want that.  He worked for 3 months and then he was picked up for being absent without leave (AWOL), which was a lie.

	d.  The company commander lied and he was supposedly reprimanded for it.

	e.  He was treated unfairly from the time of his accident through his discharge.

	f.  He has had nothing but problems getting a job since his discharge and he is trying to be a police officer, but he cannot because of his discharge.

	g.  He deserves an honorable discharge because of the Army's and the commander's lies.  It makes no sense that if he was AWOL, he would just go back to his hometown to work.

	h.  He looked over his paperwork and it is funny how a lot was left out.

	i.  The fact remains the he was discharged for something that was not his fault.  He admits that he should have handled it differently or tried harder to stay.

	j.  He should receive an honorable discharge because of the injustice and he would have stayed in the Army if not for the injustice.

	k.  He knows his records do not show anything he is contending, but it is the truth.

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 enlisted in the Regular Army on 20 August 1990.

3.  His records show he was AWOL during the periods 4-20 February 1994, 25 February-14 March 1994, and 21-22 March 1994.

4.  He accepted nonjudicial punishment (NJP) on 23 March 1994 for being AWOL during the period 25 February-14 March 1994.

5.  He was AWOL again on 25 March 1994 and returned to military control on 28 May 1994 upon apprehension by civilian authorities.

6.  On 6 June 1994, court-martial charges were preferred against him for being AWOL during the periods 21-22 March 1994 and 25 March-28 May 1994.

7.  On 6 June 1994, he consulted with legal counsel and voluntarily 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, due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

8.  He acknowledged in his request that he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser-included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he could be issued a discharge under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws. 
He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

9.  On 27 June 1994, the separation authority approved his request for discharge and directed his reduction to private/E-1 and issuance of a discharge under other than honorable conditions.  On 18 July 1994, he was discharged accordingly.

10.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 23 October 2009.

11.  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.  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.

	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 states 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 under other than honorable conditions should be upgraded has been carefully considered.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes NJP, court-martial charges, and approximately 99 days of lost time due to being AWOL.  Based on this record of indiscipline and, in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  His argument and contentions were noted; however, there is no evidence in his military records and he provided none to support his contentions.

6.  Based on the foregoing, there is no basis to grant the 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 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)                                         AR20130004789



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ABCMR Record of Proceedings (cont)                                         AR20130004789



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