BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130009189 


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 that his discharge under other than honorable conditions be upgraded to a general discharge (under honorable conditions).

2.  The applicant states that he was told he was going to receive a general discharge; however, he received a discharge under other than honorable conditions.  He goes on to state that since his discharge he has been and will remain an outstanding law-abiding citizen and born-again Christian.  He has not been in any trouble and has received a diploma in criminal justice; he is now in the degree program.  At the time he made a mistake going absent without leave (AWOL) while his wife was having problems giving birth to his first child.  He has learned from his mistakes.  He has full and part-time jobs while attending school.    

3.  The applicant provides no additional documents with his application.

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 indicated that he was single at the time he enlisted in the Regular Army on 1 September 1987 for a period of 3 years and training as a Man-Portable Air Defense System (MANPADS) crewman.  He completed one-station unit training at Fort Bliss, Texas and was transferred to Korea for his first assignment on 30 January 1988.

3.  He departed Korea on 31 January 1989 and was transferred to Fort Stewart, Georgia.  On 30 October 1989, nonjudicial punishment was imposed against him by his battalion commander for being AWOL from 10 to 27 July 1989.

4.  The applicant again went AWOL from 3 to 8 January 1990; however, the record is silent as to the punishment imposed for that offense.
 
5.  On 27 January 1990, the applicant’s commander notified him that he was initiating a bar to reenlistment against him based on his disciplinary record and the fact that he tested positive for a schedule II controlled substance during a unit urinalysis. 

6.  On 21 May 1990, he was convicted by a special court-martial of being AWOL from 21 March to 12 April 1990.  He was sentenced to confinement for 60 days.

7.  The applicant went AWOL on 10 August 1990 and remained absent in a desertion status until he surrendered to military authorities at Fort Benning, Georgia on 27 February 1992, 1 year, 5 months, and 17 days later.  He was transferred to Fort Knox, Kentucky where charges were preferred against him on 7 April 1992 for the AWOL offense.

8.  On 8 April 1992, after consulting with defense counsel, the applicant submitted a request for discharge 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.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf and stated that he did not desire rehabilitation or the opportunity to perform further service.
9.  On 14 April 1992, the appropriate authority approved his request for discharge and directed the applicant be given an under other than honorable conditions discharge. 

10.  On 1 May 1992, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 3 years, 1 month, and 14 days of active service.  

11.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons for it were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the repeated nature and extensive length of his absence.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant’s request for an upgrade of 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)                                         AR20130009189



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ABCMR Record of Proceedings (cont)                                         AR20130009189



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