IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130005088 


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 a general, under honorable conditions discharge. 

2.  The applicant states:

* he strongly contests the harsh discharge and believes it does not fit the offense
* while on active duty, his platoon sergeant made him fight and they would place bets on the fights (after hours)
* he was told by the platoon sergeant that he would be punished if he did not follow orders
* unlike the platoon sergeant, the first sergeant told him he would get punished if he participated in such actions again
* he was being harassed and threatened physically; this overwhelmed him and led him to go in an absent without leave (AWOL) status

3.  The applicant provides:

* Multiple letters of support
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2-1 (Personnel Qualification Record)
* DD Form 215 (Correction to DD Form 214)
* Immunization Records
* Medical Records
* Enlistment contract and orders
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 29 August 1979.  After completion of basic combat training, he was reassigned to Fort Eustis, VA, for completion of advanced individual training. 

3.  On 17 March 1980, he departed his unit in an AWOL status but he returned to military control on 31 March 1980.  

4.  On 4 April 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 17 to 31 March 1980 and for stealing money from another Soldier. 

5.  On 19 May 1980, he again departed his unit in an AWOL status and on 18 June 1980, he was dropped from the Army rolls as a deserter.  He ultimately returned to military control on 31 March 1981. 

6.  On 1 April 1981, court-martial charges were preferred against him for one specification of being AWOL from 19 May 1980 to 31 March 1981. 

7.  On 1 April 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he 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.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and

	d.  he stated that under no circumstances did he desire further rehabilitation or to perform further military service.

8.  On 8 and 9 April 1981, his immediate and intermediate commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

9.  On 10 April 1981, consistent with the chain of command recommendations, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 26 June 1981, the applicant was discharged accordingly.

10.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 11 months and 2 days of creditable active service and he had lost time from 17 to 30 March 1980 and 19 May 1980 to 30 March 1981. 

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

12.  He submitted medical records, immunization records, enlistment contract and orders, and DA Form 2-1.  He also submitted multiple character reference letters and/or letters of support from various individuals who opine/describe him:

* He maintains a high standard of workmanship and service
* A quick learner and a dedicated employee/individual
* A superb performer and an expert in repairing equipment
* Reliable, skilled, and always eager to assist

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

14.  According to the Manual of Courts-Martial, violation of Article 86 of the UCMJ, AWOL for more than 30 days carries a maximum punishment of a dishonorable discharge, forfeiture of pay and allowances, and confinement for 1 year. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, 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.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  There is no evidence in his records and he provides none regarding the contention that the platoon sergeant made him fight and placed bets on the fight. The available evidence clearly shows he was AWOL on two separate occasions and also stole from a fellow Soldier.

3.  Contrary to his contention that his punishment was harsh, the applicant was advised of his rights and knew the implications of his choice.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  His punishment was less harsh than it could have been had he accepted the court-martial.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge to either 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)                                         AR20130005088





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ABCMR Record of Proceedings (cont)                                         AR20130005088



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