IN THE CASE OF:	  

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130005038 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he has changed since he was discharged.  He now has a religious studies education and he would like to serve his country as a chaplain.

3.  The applicant provides seven character reference letters.

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 11 October 1979 for a period of 
4 years.  He was awarded military occupational specialty 11B (Infantryman).
3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) he was absent without leave (AWOL):

* from 3 February 1980 through 8 February 1980
* from 3 March 1981 through 4 March 1981
* from 7 December 1981 through 15 August 1982

4.  The applicant's record is void of a DD Form 458 (Charge Sheet) or a complete copy of his separation packet; however, a review of his record shows:

	a.  On 18 January 1982, the company commander forwarded court-martial charges against the applicant to the special court-martial convening authority.

	b.  The applicant consulted with legal counsel and he 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.  He understood he could request discharge based on charges being preferred against him for being AWOL from 7 December 1981 to 16 August 1982.

		(1)  He stated he was making his request of his own free will and he had not been subjected to coercion whatsoever by any person.

		(2)  He acknowledged that if his request was accepted he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge.

		(3)  He was advised he could submit any statements he desired in his own behalf; however, he elected not to do so.

5.  Orders 175-3, issued by Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, KY, dated 10 September 1982, reduced the applicant to private (PV1)/E-1.

6.  Orders 187-34, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 27 September 1982, discharged the applicant from the Regular Army effective 4 October 1982.


7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 11 October 1979 and he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of administrative discharge – conduct triable by court-martial.  He completed
2 years, 3 months, and 8 days of creditable active service with 259 days of time lost.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  In support of his application the applicant provides the following documents:

	a.  A letter from Doctor I----- S-----, Nations Association Charities, Inc., dated 
7 June 2010, that shows he has known the applicant for many years and he has been a long-standing supporter of the organization.

	b.  A letter from T------ P. S-----, dated 24 May 2010, that shows he has known the applicant for 4 years and attests to his work ethic and dedication to his family.

	c.  A letter from S—C---, local columnist of The News-Press, dated 24 May 2010, that shows he was contacted by the applicant in February 2010 following an article he wrote that had inspired him and resulted in the applicant stating he contributed $100,000.00 in 100 days to people in need.

	d.  A letter from T--- S. P------, Executive Director, Brightest Horizons Child Development Center, Inc., dated 24 May 2010, that shows she has known the applicant for 5 years and recommends him for any position available.

	e.  A letter from E---- V. B------, Senior Army Instructor, Junior Reserve Officers' Training Corps (JROTC), dated 13 May 2010, that shows the applicant contributed $500.00 to the Cape Coral High School JROTC program in support of its annual Service Learning Project (Main Flagpole Renovation and Dedication Ceremony).

	f.  A letter from L--- B. S-------, Director of Development, Evangelical Christian School, dated 13 May 2010, that shows the applicant has been a supporter and donor to the ministry.

	g.  An undated letter from J--- D. O'--------, that shows he was the guardian of a Cadet at West Point Military Academy and he came to know the applicant when the applicant volunteered his time and resources to assist the Cadet.  He attests to the applicant's positive influence on the Cadet through his words, deeds, and actions. 


10.  Army Regulation 635-200, in effect at the time, 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  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.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he has changed since he was discharged and he would like to serve his country as a chaplain.

2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the type and character of discharge directed is presumed to have been, and still is, appropriate.

3.  The evidence of record shows the applicant completed about one-half of his 4-year active duty obligation and he had more than 8 months of time lost.  Thus, 


the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The applicant's post-service conduct was considered; however, remarkable as it appears to be, his post-service conduct does not mitigate his lengthy absence leading to his discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130005038



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ABCMR Record of Proceedings (cont)                                         AR20130005038



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