IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130009881 


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 discharge under other than honorable conditions be upgraded.  He also requests his Army Achievement Medal, Army Commendation Medal, and Army Good Conduct Medal be added to his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 23 September 1987.

2.  The applicant states he was told that he had to wait at least 2 years to request an upgrade of his discharge and one would be granted upon request.  He no longer has the citations and he is missing the documentation for his Army Achievement Medal, Army Commendation Medal, and Army Good Conduct Medal.  He would like these awards added to his DD Form 214.

3.  He states he was coerced by his first sergeant into a permanent separation from his wife and newborn child.  The first sergeant told him he could not force him to divorce his wife but he could make his life a living hell and told him he would pay for her and his child's transport to Germany and give him the Army Good Conduct Medal.  He was also promised a promotion to corporal.  When he took his family to the airport he was told if he was "even 1 second late" in returning he would be placed in the stockade and charged with being absent without leave (AWOL).  When he saw he was going to be late due to traffic he decided he would rather have those charges brought against him at his old unit so he took a flight to Germany.  His wife later turned him in to the 503rd Military Police.

4.  The applicant provides his DD Form 214.
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 12 September 1984, he enlisted in the Regular Army.  He was assigned to the 1st Battalion, 33rd Artillery in Germany from 29 January 1985 to 3 October 1986.  He was promoted to private first class on 12 September 1985.

3.  On 17 November 1986, he was assigned to Company C, 2nd Battalion, 
69th Armor at Fort Benning, GA.

4.  On 17 March 1987, he accepted nonjudicial punishment (NJP), for eight specifications of wrongfully and unlawfully, with the intent to defraud and the procurement of currency, drawing checks to the Main Exchange then knowing that he did not or would not have sufficient funds or credit with his bank for the payment thereof in full.  The checks were drawn during the periods 
16-25 November and 2-13 December 1986.  

5.  He departed AWOL on 7 May 1987 and he was apprehended by civil authorities and returned to military control on 28 July 1987.

6.  On 5 August 1987, court-martial charges were preferred against the applicant for being AWOL from on or about 7 May 1987 until on or about 28 July 1987.

7.  On 5 August 1987, the applicant voluntarily requested 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.  He acknowledged he understood the offenses he was charged with and he was:

* making the request of his own free will and without coercion
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate
* not submitting statements in his own behalf with his request

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he received a discharge under other than honorable conditions and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Veterans Administration (VA) benefits

9.  On 8 September 1987, the appropriate authority approved the applicant's request for discharge for the good of the service, directed the applicant be reduced to the lowest grade, and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 23 September 1987, 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 2 years, 9 months, and 21 days of net active service that was characterized as under other than honorable conditions.  He had 
82 days of time lost.

11.  There are no orders or other documentation in the applicant's Military Personnel Records Jacket (MPRJ) that show he was awarded the Army Commendation Medal, the Army Achievement Medal, or the Army Good Conduct Medal.

12.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  The Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  The Army Achievement Medal is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 
1 August 1981, distinguished themselves by meritorious service or achievement. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	c.  The Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  The Army Good Conduct Medal was awarded, for first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included 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.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  Although the applicant contends his first sergeant's actions were the initial reasons for his going AWOL, he has provided no substantive evidence to corroborate his contention.  Therefore, his contentions were not considered mitigating in the determination of his case.

3.  The fact that he was apprehended by civilian authorities after 82 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  Therefore, his service is considered unsatisfactory.   

4.  He voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged that he understood he could receive a discharge under other than honorable conditions and that, as a result, he could be deprived of his rights and benefits as a veteran under Federal and State law.

5.  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.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

7.  In view of the above, there is no basis upon which to upgrade his under other than honorable conditions discharge to either an honorable or a general discharge.

8.  There are no orders in his MPRJ and he has not provided any substantive evidence that shows he was recommended for or awarded the Army Commendation Medal, the Army Achievement Medal, or the Army Good Conduct Medal.  Therefore, there is insufficient evidence to add these awards to his 
DD Form 214.

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)                                         AR20130009881



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ABCMR Record of Proceedings (cont)                                         AR20130009881



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