BOARD DATE:	 2 January 2014 

		DOCKET NUMBER:  AR20130007177 


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 under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states, in effect, his discharge should be upgraded due to:

* his having continuous active duty service from 30 November 1987 to 21 March 1995
* during the period of time he was absent without leave (AWOL) he had extenuating family problems and his chain of command failed him
* prior to his family issues, his service was honorable and his conduct was immaculate
* he did not receive effective counseling and the Army did not have the patience to invest time or money in him
* during his separation and due to lack of effective counseling, he felt it was in the best interest to be separated in lieu of a court-martial

3.  The applicant provides 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's records show he enlisted in the Regular Army (RA) on 30 November 1987 and held military occupational specialty 77F (Petroleum Supply Specialist).  

3.  He reenlisted on 14 June 1990 and 10 November 1993.  He served in Germany from 20 June 1988 to 9 September 1991; Southwest Asia from 3 December 1990 to 5 May 1991; and Korea from 26 June 1994 to on or about 22 March 1995. 

4.  He was awarded or authorized the Southwest Asia Service Medal with three bronze service stars, Army Commendation Medal, Army Achievement Medal (2nd Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal, NCO Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Driver and Mechanic Badge, and Kuwait Liberation Medal. 

5.  On 12 February 1995, he departed his unit on ordinary leave.  However, by 22 March 1995, he had failed to return to duty.  Accordingly, he was reported AWOL on that date.  Furthermore, on 21 April 1995, he was dropped from the Army rolls as a deserter.  He ultimately surrendered to military authorities at MacDill Air Force Base, FL, on 15 May 1995. 

6.  On 19 May 1995, court-martial charges were preferred against the applicant for one specification of being AWOL from 12 March 1995 to 15 May 1995.  

7.  On 19 May 1995, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, the applicant acknowledged that:

* he was making this request of his own free will and had not been coerced by any person whatsoever
* he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge 
* he understood if the 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 Department of Veterans Affairs
* he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement on his own behalf

8.  In his statement, he indicated that the reason he went AWOL was to be with his family and his son so that he could be a full-time father.  He added that he was in the process of becoming a Jehovah Witness and through the study of the Bible he is not allowed to practice war or salute the flag.  His allegiance is only to his God.  He concluded that his son was 2 years old and he had yet to receive any type of assistance for him.  He had applied for assistance several times but did not receive any and he felt with God's help, he could receive a better job to support his son and wife. 

9.  On 11 July 1995, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service. 

10.  Consistent with the chain of command's recommendations, on 14 July 1995 the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10, Army Regulation 635-200, directed reduction to the lowest enlisted grade, and the issuance of an under other than honorable conditions discharge.  The applicant was accordingly discharged on 15 August 1995.  

11.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 7 years, 6 months, and 23 days of creditable active service with lost time from 22 March to 14 May 1995.  Furthermore, item 18 (Remarks) of this form shows he had continuous honorable service from 30 November 1987 to 21 March 1995. 

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

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

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his extended period of AWOL.

2.  There is no evidence in his service records and he did not provide any substantiating evidence that shows he had any extenuating circumstances that caused him to go AWOL.  The evidence of record clearly shows he was on ordinary leave from 12 February to 22 March 1995.  He chose to be AWOL.  Likewise, when court-martial charges were preferred against him, he consulted with counsel and he was advised of his options.  He could have elected trial by a court-martial if he felt he was innocent of the charges.  

3.  Based on his misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20130007177





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ABCMR Record of Proceedings (cont)                                         AR20130007177



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