IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130005558 


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, that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states he wants to be forgiven for deserting with only 2 months left of active duty service.  He did not come forward earlier because of the shame and embarrassment.  At the time of his desertion, he was a young man who clearly made some poor decisions.  Since his discharge, he has carried this shame every day of his life.  He fled the service because he was living with a roommate who had become involved with a bad civilian element.  His roommate was selling marijuana and was arrested.  The applicant was getting questioned about his association with his roommate.  Because of this association, he felt he would be implicated.  As a result he was scared and fled.  He regrets tremendously making that decision to flee.  Up until that time his career was moving in a very positive direction.  He was a promotable specialist four.  He was ready to accept his promotion and to reenlist.  If he could do it all over again, the results would be very different.  He asks the Board for an honorable discharge so he can now move forward.

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.  On 25 August 1980, the applicant, at the age of 21 years and 7 months, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13F (Fire Support Specialist).

3.  On 9 December 1980, the applicant was assigned for duty with the 2nd Battalion, 20th Field Artillery, located in the Federal Republic of Germany.

	a.  On 25 September 1981, the applicant accepted nonjudicial punishment for disobeying a lawful order.

	b.  On 13 January 1982, he was advanced to specialist four, pay grade E-4.

	c.  On 3 December 1982, he completed his overseas assignment and was returned to the United States.

4.  On 13 January 1983, the applicant was assigned to the 1st Battalion, 92nd Field Artillery Regiment for duty as a forward observer.

5.  On or about 26 May 1983, the applicant departed AWOL.  He was AWOL for about 411 days until 9 July 1984.

6.  On 12 July 1984, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period that commenced on or about 26 May 1983.

7.  On 13 July 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.
8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

9.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 13 August 1984, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions).  On 7 September 1984, the applicant was discharged accordingly.  He had completed 2 years, 10 months, and 29 days of creditable active duty military service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense 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 trail by court-martial.  A discharge UOTHC 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 (emphasis added), 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.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge UOTHC should be upgraded to honorable because he was young, scared, and made poor decisions.  He further contends that if he could do it over again, the results would be very different.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The evidence of record shows that the applicant had satisfactorily completed his initial training.  He was awarded an MOS and assigned for duty overseas.  He was advanced to the rank of specialist four and had completed approximately 
2 3/4 years of honorable service prior to his extended period of being AWOL.

4.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was over 21 years of age, had satisfactorily completed training,  had served for over 2 years, and had attained the rank of specialist four, pay grade E-4, before deciding to be AWOL.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

5.  The applicant's lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  In view of the above, the applicant's request should be denied.



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)                                         AR20130005558





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ABCMR Record of Proceedings (cont)                                         AR20130005558



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