IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130008853 


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 an honorable discharge.

2.  The applicant states, in effect, that previously neither his full military record nor the mitigating and extenuating factors surrounding his discharge were considered.  He was only seventeen years old when he enlisted into the military and he was an only child being raised by his mother.  He was very immature.  His mental attitude was severely impacted when his mother was diagnosed with cancer.  His mental attitude was further exacerbated when he was stabbed by a fellow Soldier which mistakenly led him to go absent without leave (AWOL).  Prior to these situations he had never been disciplined or got into any trouble or had problems in the Army.

3.  The applicant provides:

* Seven Letters of Support
* Standard Form (SF) 600 (Chronological Record of Medical Care)
* DA Form 4700 (Medical Record -Supplemental Medical Data)
* Personnel Control Facility Interview Sheet, dated 30 January 1981
* Summary Hearing, Summary of Testimony and Evidence 
* Durable General Power of Attorney, signed on 3 November 2011



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 13 November 1979, the applicant enlisted in the Regular Army at age 17.  He completed his initial training and was awarded military occupational specialty 72E (Telecommunications Center Operator) and he was subsequently assigned to Fort Hood, TX.

3.  His record contains a Personnel Control Facility Information Sheet and Interview Sheet which shows that he departed AWOL on 21 October 1980 and he surrendered to military authorities at Fort Dix, NJ, on 19 January 1981.  At the time of his surrender, the applicant stated that he had been stabbed by another Soldier during a Reforger Training Exercise in Europe.  Upon his return to the United States he found out that his mother was sick.  He was an only child and felt he should go home.  Additionally, he did not feel the Army was good for him after the stabbing.

4.  A DD Form 458 (Charge Sheet), dated 29 January 1981, shows he was charged with being AWOL from 22 October 1980 to 19 January 1981.

5.  On 30 January 1981, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He acknowledged that he understood he could request a discharge for the good of the service because a charge had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.



	b.  He acknowledged:

* he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions as a result of his request
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge 
* as the result of such a discharge, he would be deprived of many or all benefits administered by the Veteran's Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	c.  He indicated that he did not intend to submit statements in his own behalf.

6.  On 11 February 1981, the applicant's commander recommended he be discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.

7.  On 17 February 1981, the separation authority approved the applicant's request for separation and directed he receive an under other than honorable conditions discharge.  On 6 April 1981, he was discharged accordingly.

8.  On 4 November 1982, after careful consideration of his military records and all other available evidence, the Army Discharge Review Board (ADRB) determined that he had been properly discharged and they denied his request to upgrade his under other than honorable conditions discharge.

9.  He provides:

	a.  Several letters of support which state the applicant is a loving and generous father and a reliable, honest, and hard-working person.

	b.  Medical records which show he was treated for a laceration to his central lumbar in July 1980 and returned to duty.



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

	a.  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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.

3.  The applicant was 17 years of age when he enlisted and he had to deal with a stressful situation.  However, there is no evidence that he sought assistance from his chain of command on any of his personal problems and there is no indication that he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  His post-service conduct and achievements are noted.  Generally, post-service conduct and achievements are an insufficient basis for upgrading a properly-issued discharge.

5.  Based on his lengthy period of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of sufficiently mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade his 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)                                         AR20130008853



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ABCMR Record of Proceedings (cont)                                         AR20130008853



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