IN THE CASE OF:	  

		BOARD DATE:  7 November 2013

		DOCKET NUMBER:  AR20130005052 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states his grandmother, who raised him, was going through tough times and was unable to take care of herself.  He thought it was in his best judgment to assist her in any way he could.  Unfortunately, that meant being absent without leave (AWOL).  After a few months, he realized he should not have gone AWOL and that he needed to make smarter decisions to assist both himself and his grandmother.  He did not argue that what he had done was wrong and accepted the terms he was given.  He was told he could request an upgrade of his discharge after 6 months.  He feels he has been an exemplary citizen.  Since his separation he has been able to hold down a job and he has raised a family.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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, in pay grade E-1, on 17 January 1985.  He completed training and he was awarded military occupational specialty 64C (motor transport operator).  He was advanced to pay grade E-2 on 17 July 1985.  He served in Germany from on or about 18 July 1985 to 2 September 1985.

3.  He was reported AWOL on 3 September 1985 and dropped for his unit rolls as a deserted on 2 October 1985.  On 4 December 1985, he surrendered to civilian authorities at Mount Vernon, IL, and was returned to military control on the same date.

4.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Orders Number 33-12 issued by Headquarters, U.S. Army Personnel Control Facility, Fort Knox, KY, on February 1986, reduced him to pay grade E-1 effective 19 February 1986, and ordered his discharge under the authority of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with an Under Other Than Honorable Conditions Discharge Certificate; and

	b.  his DD Form 214 which shows he was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 on 21 March 1986 under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under other than honorable conditions.  He was credited with completing 11 months and 4 days of net active service with 92 days of time lost.

5.  On 23 March 1988, the Army Discharge Review Board denied his appeal for an upgrade of his discharge.

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:


	a.  Chapter 10 - a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must had included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	b.  Paragraph 3-7 - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered; however, his record is void of the facts and circumstances which led to his voluntary discharge.  The issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10, required that he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.

2.  He has not provided sufficient evidence or argument to show his discharge should be upgraded or to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  It is presumed that his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.  

3.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge after 6 months or other passage of time.  Therefore, there is insufficient evidence to upgrade his discharge to honorable to general.



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)                                         AR20130005052



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ABCMR Record of Proceedings (cont)                                         AR20130005052



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