IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130006437 


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 change of his under other than honorable conditions discharge to either uncharacterized or to a general discharge.

2.  The applicant states he learned that due to his short period of service his discharge should most likely have been considered uncharacterized or general.

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 on 15 July 1982.  He completed training and he was awarded military occupational specialty (MOS) 31M (Multichannel Communications Equipment Operator).

3.  The applicant, while serving in Korea, was absent without leave from 1 March 1983 until he was apprehended on 17 March 1983.

4.  On 17 March 1983, the applicant and another Soldier were arrested on the charges of robbery, aggravated assault, carrying a concealed weapon, AWOL, and an identification card violation.

5.  As a result, court-martial charges were preferred against the applicant.  The command recommended trial by a special court-martial.

6.  On 23 March 1983, after consulting with counsel and being advised of his rights and options, the applicant submitted a voluntary request for separation 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 acknowledged he was guilty of the charges or lesser included charges and that, if the request was accepted; he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged that such a discharge 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 an under other than honorable conditions discharge.

7.  The separation authority approved the applicant's request under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.

8.  On 4 May 1983, the applicant was discharged accordingly.  He completed 9 months and 3 days of creditable active service with 16 days of time lost.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 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.

	d.  Paragraph 3-9 states an uncharacterized separation is for entry-level-status separations.  It is authorized for the Soldier who has less than 181 days of continuous active military service except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant completed more than 181 days of active military service at the time of his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10.  Although by regulation an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.  In this case, the appropriate separation authority deemed it appropriate to direct the applicant be separated with an under other than honorable conditions discharge.

3.  The applicant's misconduct and charges that led to preferral of court-martial charges that ultimately led to his discharge clearly does not demonstrate satisfactory performance of duties required of Soldiers.


4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20130006437



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ABCMR Record of Proceedings (cont)                                         AR20130006437



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