BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130011367 


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 discharge to a general discharge or an honorable discharge.

2.  The applicant states under current standards he would not have received this type of discharge because it was too severe.  He was only 3 weeks from his actual expiration of term of service (ETS) date.  His first sergeant had it in for him for some reason.

3.  The applicant provides a copy of a Self-Help to Discharge Upgrading instructions.

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 February 1980, for 3 years.  He completed training and was awarded military occupational specialty 11B (infantryman).  He served in Germany from 9 June 1980 through 11 December 1981.  He was advanced to pay grade E-3 on 1 March 1981. 

3.  He was reported absent without leave (AWOL) on 12 June 1981 and was returned to military control on 20 June 1981.

4.  On 13 October 1982, court-martial charges were preferred against the applicant for an unidentified offense that occurred on 7 September 1982.  A summary court-martial was recommended but apparently the court-martial never convened.

5.  He was again reported AWOL on 29 November 1982 and he surrendered to military authorities on 3 December 1982.

6.  On 13 December 1982, a bar to reenlistment was initiated against him based on his record of nonjudicial punishments for being drunk and disorderly in Government quarters, assault, and two counts of failure to repair.  

7.  On 15 December 1982, a DD Form 458 (Charge Sheet) was completed by the Commander, Company C, 2nd Battalion, 503rd Infantry, 101st Airborne Division, Fort Campbell, KY.  The applicant was charged with one specification of being AWOL from 29 November through 3 December 1982.

8.  On 20 and 21 December 1982, the applicant's company and battalion commanders respectively recommended that the applicant be tried by a court-martial empowered to adjudge a bad conduct discharge.

9.  On 17 January 1983, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

10.  On 20 January 1983, the applicant’s company and battalions commanders recommended approval of the applicant’s discharge with the issuance of an under other than honorable discharge.

11.  On 31 January 1983, the separation authority approved the applicant’s request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

12.  On 3 February 1983, the applicant was discharged accordingly.  He completed 2 years, 10 months, and 24 days of net active service with 18 days of time lost.

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

14.  Army Regulation 635-200, in effect at the time and current version, sets forth the basic authority for separation of enlisted personnel.  The regulation state in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - a honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  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 evidence of record shows court-martial charges were preferred against the applicant for several offenses of misconduct.  Upon his return from AWOL and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  He also acknowledged he could be discharged under other than honorable conditions.  On 3 February 1983, he was discharged accordingly.

2.  He was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200, in effect at the time and under current standards, are voluntary requests for discharge in lieu by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to 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 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)                                         AR20130011367





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ABCMR Record of Proceedings (cont)                                         AR20130011367



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