IN THE CASE OF:	  

		BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20130012424 


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 he completed his four-year service obligation; therefore, his characterization of service should be honorable.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 June 1984, he enlisted in the Regular Army for a period of 4 years.

3.  On 22 January 1990, he was charged with being absent without leave (AWOL) from 29 March 1988 to 16 January 1990 (658 days) while assigned to Baumholder, Germany. 

4.  On the same day, he consulted with counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

5.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He stated he understood he could request discharge for the good of the service because of charges having been preferred against him under the UCMJ, at least one of which authorized the imposition of a bad conduct or dishonorable discharge.

6.  In his request for discharge he further acknowledged:

* he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood that as a result of his request he could be discharged under other than honorable conditions
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge
* he understood that there was no automatic upgrading or review of an other than honorable conditions discharge and that he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his discharge

7.  He elected to submit statements in his own behalf.  In his statement he contended that he was scheduled to be released from active duty on 11 June 1988, and he went AWOL on 29 March 1988, approximately 72 days prior to his expiration term of service (ETS).  However, he was eligible for a 90-day early out and he had accrued 60 days of leave.  His company commander was aware that a job was being held for him until April and that he had plans to attend Indiana University but he still refused to approve an early release or leave.



8.  On 21 August 1990, the separation authority approved his request for discharge, directed that he be discharged under other than honorable conditions, and directed that he be reduced to private/E-1.  On 9 October 1990, he was discharged as directed.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent 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 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 available evidence does not support the applicant's request for an upgrade of his under other than honorable conditions discharge.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  He voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

3.  The record further shows that the applicant went AWOL prior to the completion of his period of service.  In his request for discharge he stated that he did so because he was denied the opportunity to be released early from the Army in order to accept employment and attend college.  Early release from the Army is not an entitlement, and at this point in time it must be presumed his commander had a valid reason for denying his request for an early out.

4.  Based on his lengthy absence, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  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)                                         AR20130012424





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ABCMR Record of Proceedings (cont)                                         AR20130012424



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