IN THE CASE OF:	  

		BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130011466 


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, in effect, upgrade of his discharge under other than honorable conditions.

2.  The applicant states that upon reentry into the service he was told he could take his family with him.  However, when he received orders to Germany he was unable to take his family with him.  He talked to the battalion commander and he told him to stay home.

3.  The applicant stated on his application he provided three letters, dated 
14 September, 9 September and 9 August 2011.  However, these letters were not attached to 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.  He previously completed 5 years and 3 days of active service in the Regular Army.  On 4 November 1980, he enlisted in the Regular Army in pay grade E-3 for 3 years.  He enlisted under the U.S. Army Training of Choice Enlistment Option for military occupational specialty (MOS) 64C (Motor Transport Operator).

3.  On 21 January 1981, he received orders for Germany.  The orders did not authorize him to take his dependents.

4.  On 9 July 1981, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 3 February to on or about 
6 July 1981.

5.  On 10 July 1981, 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 with 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

6.  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

7.  On 27 July 1981, the appropriate authority approved the applicant's request for discharge for the good of the service, directed the applicant be reduced to private (PV1)/E-1, and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 5 August 1981, 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 4 months and 14 days of net active service this period that was characterized as under other than honorable conditions.  He had 123 days of time lost.

9.  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.

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

	a.  Chapter 10 of that regulation provides, in part, 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 1-13a 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 1-13b 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.

11.  Joint Federal Travel Regulations (JFTR) Part 1: Department of Defense Members of Appendix Q1 (OUTCONUS (out continental U.S) Tour Lengths/Tours of Duty JFTR/JTR) states that an accompanied tour for Germany is 36 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends when he enlisted he was told he could take his family with him.  However, he enlisted for training in MOS 64C.  His contract contained no other guarantees.  After receiving orders to Germany, he was told he couldn't take his family with him.  Based on the date of his orders, he did not have the required 36 months obligated service for an accompanied tour in Germany.  

2.  Once he received the training he enlisted for, there was no guarantee that he would be able to take his family with him overseas.  All Soldiers are subject to being stationed in areas where dependents are not authorized or on unaccompanied tours if they don't have the required obligated service to complete an accompanied tour overseas.  A Soldier with a little over 5 years of experience would be expected to be aware of this policy.

3.  He contends he went to his battalion commander and he told him to stay home.  It does not seem likely that his battalion commander simply told him to stay home.  In addition, a Soldier with a little over 5 years of experience would be expected to know that just going home was not the answer and that he would be expected to comply with his orders.

4.  He voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He acknowledged he could receive an under other than honorable conditions discharge and that he may be ineligible for many or all Army benefits.  He also acknowledged that he had been advised and he understood he may be ineligible for many or all benefits administered by the VA.

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 record contains no evidence of procedural or other errors that would have jeopardized his rights.

7.  He failed to complete the term of service he had contracted for and he had 123 days of time lost.  Therefore, his final period of service is unsatisfactory.

8.  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 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)                                         AR20130011466



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011466



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1