IN THE CASE OF:	  

		BOARD DATE: 20 March 2014 

		DOCKET NUMBER:  AR20130012902 


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

2.  The applicant states that he believes he is entitled to an honorable discharge based on his first enlistment. 

3.  The applicant provides copies of his enlistment documents.

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 18 October 1978 for a period of 3 years, training as a cannon crewman and assignment to Europe.  He completed his one-station unit training at Fort Sill, Oklahoma and was transferred to Germany on 29 January 1979.  He was advanced to the pay grade of E-4 on  1 July 1980.

3.  On 19 April 1981, he was honorably discharged for the purpose of immediate reenlistment and on 20 April 1981 he reenlisted for a period of 4 years, assignment to Fort Bragg, North Carolina and a selective reenlistment bonus.  

4.  He departed Germany on 16 October 1981 and was transferred to Fort Bragg for assignment to an artillery battery.

5.  On 24 January 1983, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 8 January to 19 January 1983.   

6.  The applicant again went AWOL on 5 July 1983 and remained absent in desertion until he was returned to military control at Fort Lee, Virginia on
2 December 1983 and was transferred to Fort Dix, New Jersey where charges were preferred against him on 7 December 1983.

7.  On 7 December 1983, after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

8.  The appropriate authority (a major general) approved his request for discharge on 20 December 1983 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under the provisions of Army Regulation
635-200, chapter 10, on 18 January 1984 in lieu of trial by court-martial under other than honorable conditions.  He completed 4 years, 9 months, and 23 days of active service. 

10.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

11.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is considered appropriate.

	a.  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.

	b.  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'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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered; however, they are not sufficiently mitigating to warrant relief when compared to the serious and repeated nature of the charges against him, the lack of sufficient mitigating circumstances presented at the time, and his overall undistinguished record of service.  His service did not rise to the level of an honorable or a general discharge.  Accordingly, there appears to be no valid basis to approve his request for an upgrade of his 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)                                         AR20130012902



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ABCMR Record of Proceedings (cont)                                         AR20130012902



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