IN THE CASE OF:	  

		BOARD DATE:  14 January 2014

		DOCKET NUMBER:  AR20130008864 


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 discharge under other than honorable conditions.

2.  The applicant states he was denied emergency leave to say goodbye to his grandmother who had passed away at the time he left his unit.  At that time his unit was in garrison with no field duty or deployment planned.  He states he is unable to obtain a passport and he would like to have his name cleared.  He has been clean and sober for 14 years and has straightened out the rest of his life.

3.  The applicant provides no additional evidence.

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 18 June 1987.

3.  The applicant's records contain a DD Form 458 (Charge Sheet), dated 3 August 1992, which shows a court-martial charge was preferred against him for one specification of being absent without authority during the period 9 December 1991 to 28 July 1992.

4.  On 3 August 1992, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him.  Following counseling, the applicant submitted a voluntary written request for 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.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

5.  On 1 September 1992, the applicant's unit commander transmitted the charges against the applicant to the battalion commander and recommended his trial by a special court-martial authorized to impose a bad conduct discharge.

6.  On 21 September 1992, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and the issuance of a discharge under other than honorable conditions.

7.  On 7 October 1992, the applicant was discharged accordingly.  He completed 4 years and 8 months of creditable active service with 233 days of lost time.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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 evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  His service records show he was absent without authority for a total of 233 days.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  There is no evidence of record and he did not submit any evidence that shows he requested leave from his chain of command or through other channels, such as the chaplain.  Further, about the most leave he would have been authorized was 30 days.  He was absent for 233 days.

4.  In view of the foregoing evidence, there is an insufficient basis for upgrading 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 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)                                         AR20130008864



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ABCMR Record of Proceedings (cont)                                         AR20130008864



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