IN THE CASE OF:	  

		BOARD DATE:  5 December 2013

		DOCKET NUMBER:  AR20130008187 


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 his under other than honorable conditions discharge be upgraded to an honorable or a general under honorable conditions discharge.

2.  He states he was given death threats from a staff sergeant (SSG) in charge of him who made it impossible for him to stay in the Army.  He explains that the SSG caught him with his best friend's wife. 

3.  He 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 enlisted in the Regular Army on 19 January 1983 for 3 years.  
3.  On 23 July 1985, charges were preferred against him for being absent without leave (AWOL) from 11 March 1985 to 21 May 1985.

4.  On 23 May 1985, he consulted with counsel and he voluntarily 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.

5.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request, he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  The applicant elected not to provide a statement on his behalf.

6.  On 21 June 1985, the appropriate authority approved his request and directed the issuance of a discharge under other than honorable conditions.

7.  On 25 July 1985, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 2 years, 3 months, and 27 days of net active service during this period with lost time from 11 March 1985 to 20 May 1985.

8.  On 11 April 1988, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 24 March 1989, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	b.  Paragraph 3-7a provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that his discharge should be upgraded because his AWOL was due to death threats by his SSG who made it impossible for him to stay in the Army.  However, there is no evidence and he has not provided any to substantiate his claim.  He did not make this claim when he had an opportunity to do so when he requested discharge.

2.  The evidence of record shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.  In his voluntary request for discharge, he indicated he was making the request of his own free will and he had not been subjected to coercion whatsoever by any person.  Therefore, his contention that his SSG’s death threats ultimately led to his indiscipline is not sufficient as a basis for upgrading his discharge.

3.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record further shows he admitted he was guilty of being AWOL from
11 March 1985 to 21 May 1985. 

4.  His record of service included 72 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130008187





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ABCMR Record of Proceedings (cont)                                         AR20130008187



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