IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130010389 


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:

	a.  He loved serving in the 82d Airborne Division.  He requested a transfer from Fort Bragg to Fort Knox for family reasons.  His son was born with a bad heart and he needed to be with his wife.  His request was denied.

	b.  He had a bad jump at Fort Bragg.  His parachute did not open which affected him in ways that were hard to explain.  After his parachute did not open, he knew he needed to be home with his wife and son.

	c.  His unit was on alert for deployment all the time and he was scared he would not get to see his son and he would not live.  He just wanted a transfer to be with his wife and son.  They tried every avenue, but he could not get a transfer.

	d.  He feels if he could have gotten the transfer he would have finished his career in the military and maybe retired.  He was a tanker and Fort Knox was just minutes from his home.  He took his basic training at Fort Knox.

	e.  He has trouble getting a job because of the status of his discharge.

	f.  His legs and back are in bad shape and most doctors tell him it was mostly likely caused by the impact from the bad jump he had.

3.  The applicant provides documentation pertaining to his parachute jump on 8 December 1984.

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 22 March 1983 for a period of 3 years.  He completed his training and was awarded military occupational specialty 19E (armor crewman).

3.  He provided documentation which shows he experienced a difficult parachute landing on 8 December 1984.  The DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 10 January 1985, describes the incident and determined the applicant's parachute canopy release assembly was improperly rigged.  The findings specifically state:  "There was no equipment malfunction."

4.  Records show nonjudicial punishment was imposed against him on 19 April 1985 for violation of Article 112a (drug use – no other information known).

5.  He was absent without leave (AWOL) on 22 April 1985 and was apprehended by civilian authorities on 18 February 1988 and returned to military control.  On 22 February 1988, charges were preferred against him for the AWOL period.

6.  On 22 February 1988, he consulted with counsel and 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.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

7.  On 3 March 1988, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions with reduction in rank to private/E-1.

8.  On 11 April 1988, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 2 months, and 24 days of creditable active service with 1,032 days of lost time.  His service was characterized as under other than honorable conditions.

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

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 applicant contends he wants his discharge upgraded because he has trouble getting a job.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

2.  His record of service included one nonjudicial punishment and a lengthy AWOL period.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

4.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130010389



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ABCMR Record of Proceedings (cont)                                         AR20130010389



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