IN THE CASE OF: 

		BOARD DATE:	    10 April 2014

		DOCKET NUMBER:  AR20130012736 


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 conditions discharge.

2.  The applicant states:

* he erred in judgment and made a bad choice by going in an absent without leave (AWOL) status
* he feared for his family since neighborhood gangs were on his street address
* the Army officer at his hearing did not convince him to finish his four years and he did not understand then what he now knows
* he joined the Army to get out of a gang; they threatened his life if he did not go AWOL to report to them for money he was accused of stealing; most of "them" are deceased now 
* being young and immature, he chose to go AWOL and reported to the leader of the gang until he paid his debt
* he needs the upgrade for medical reasons/treatment 

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.  The applicant's record shows he was born in August 1960.  He enlisted in the Regular Army for a 4-year term at nearly 19 years of age on 1 June 1979.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  Upon completion of MOS training, he was assigned to Fort Bragg, NC.  He was awarded or authorized the Parachutist Badge, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Grenade Launcher Bar (M-203).  

4.  On 17 June 1981, he departed his unit in an AWOL status, and on 17 July 1981 he was dropped from the Army rolls as a deserter.  He surrendered to military authorities at Fort Bragg, NC, on 25 November 1981.  

5.  On 25 November 1981, his command preferred court-martial charges against him for one specification of being AWOL from 17 June to 25 November 1981.  

6.  On 2 December 1981, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily 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.  In his request for discharge, he indicated:

* he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

7.  On 7 December 1981, the applicant's commander interviewed him.  The applicant stated he was aware of the nature of the interview and the consequences of a discharge under other than honorable conditions.  He stated his AWOL was caused by personal problems.  He feared for the safety of his wife and family but did not wish to discuss the reason for his fear.  He only mentioned that he owed money to individuals who made a threat against his life and the lives of his family members.  He also stated he was tired of the military and he had no desire to continue in the military.  

8.  On 7 and 11 December 1981, his intermediate and senior commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

9.  On 15 January 1982, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 27 January 1982.

10.  His DD Form 214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 2 year, 2 months, and 19 days of active service and he had 161 days of lost time.  

11.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, an under other than honorable conditions discharge 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with counsel and being advised of his rights, he 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The applicant was nearly 19 years of age at the time of his enlistment and nearly 21 years of age at the time of his AWOL.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  While the applicant's circumstances in relation to the safety of his family at the time are noted, there would have been several other avenues to address this issue with his chain of command or support channels at his installation had he chosen them.  Furthermore, his post-service maturity and need for medical assistance are noted; however, they are not sufficiently mitigating to grant him the requested relief.

4.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's 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)                                         AR20130012736





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ABCMR Record of Proceedings (cont)                                         AR20130012736



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