BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20130012887 


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 that his under other than honorable conditions discharge be upgraded to honorable.  

2.  The applicant states he was one month short of his end of term of service and he was going through a divorce and his daughter indicated that she was going to commit suicide.  He adds that he subsequently enlisted in the Maryland Army National Guard (MDARNG) and that he executed his duties above and beyond.  

3.  The applicant provides a DD Form 214 for the period ending 24 November 1997, National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period 6 April 1982 - 14 February 1984, and MDARNG discharge orders.  

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.  After serving in the MDARNG from 6 April 1982 to 14 February 1984, the applicant enlisted in the Regular Army on 8 March 1984.  He reenlisted on 
29 January 1987 for a period of three years and on 23 April 1991 for a period of six years.

3.  On 3 March 1997, he departed absent without leave (AWOL) and remained AWOL until his apprehension by civilian authorities on 28 August 1997.

4.  On 2 September 1997, court-martial charges were preferred against the applicant for the AWOL offense.  

5.  On 3 September 1997, he consulted with legal counsel and 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, due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

6.  On 3 October 1997, the separation authority approved his request for discharge and directed his reduction to private/E-1 and issuance of a discharge under other than honorable conditions.  On 24 November 1997, he was discharged accordingly.

7.  There is no evidence in the applicant's records indicating that family and/or personal problems were the proximate cause of his AWOL offense.  

8.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgraded of his under other than honorable conditions discharge.

9.  He subsequently served honorably in the MDARNG from 29 September 2006 until his transfer to the Retired Reserve on 31 December 2011.

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 states 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's contention that his under other than honorable discharge should be upgraded to honorable has been carefully considered.  

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge 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.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes a lengthy unauthorized absence and court-martial charges.  Based on this record of indiscipline and, in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  His argument and contentions were noted; however, there is no evidence in his military records and he provided none to support his contentions.

6.  His subsequent service in the MDARNG was noted; however, this service does not change the facts and circumstances surrounding the misconduct that resulted in his under other than honorable conditions discharge.  

7.  Based on the foregoing, there is no basis to grant the requested relief.  

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)                                         AR20130012887



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ABCMR Record of Proceedings (cont)                                         AR20130012887



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