IN THE CASE OF:	  

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130013146 


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:

* it has been more than 17 years since his discharge and he deserves a second chance
* he served his country with pride and without malice; he has been an upstanding citizen since his discharge

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 records show he enlisted in the Regular Army on 2 December 1993 and he held military occupational specialty 63E (M-1 Tank System Mechanic). 

3.  He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  On 19 February 1996, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for physically controlling a vehicle while impaired by alcohol. 

5.  On 20 March 1996, he departed his Fort Carson, CO, unit in an absent without leave (AWOL) status and on 19 April 1996, he was dropped from the rolls as a deserter.  He was apprehended by civil authorities and returned to military control on 15 July 1996.  He was attached or assigned to Fort Sill, OK, for processing.  

6.  On 18 July 1996, court-martial charges were preferred against him for one specification of AWOL from 20 March to 15 July 1996.  

7.  On 18 July 1996, the applicant consulted with legal counsel and was advised 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 UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he 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.

8.  In his request for discharge he indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also:

* indicated he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or an under other honorable conditions discharge
* understood if his request for discharge was accepted, he could be discharged under other than honorable conditions
* acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf and declined a physical evaluation prior to separation

9.  On 4 September 1996, subsequent to a legal review for legal sufficiency and consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by a court-martial.  He directed the applicant be reduced to the lowest enlisted grade (if applicable) and his service be characterized as under other than honorable conditions.  On 1 October 1996, the applicant was accordingly discharged.

10.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in the rank/grade of private/E-1 with a character of service of under other than honorable conditions.  This form further shows he completed 2 year, 6 months, and 3 days of creditable active service with 117 days of lost time.  His DD Form 214 also shows in:

* Item 26 (Separation Code) - "KFS" 
* Item 27 (Reentry Code) - "3"

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	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 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. 

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. 

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

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.  The applicant voluntarily, willingly, and in writing requested a 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.  Furthermore, his discharge accurately reflects his overall record of service.

2.  The Army does not have nor did it ever have a policy wherein a characterization of service is upgraded due to passage of time.  Additionally, the applicant was assigned a reentry code 3, indicating he was not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  The applicant has always had a second chance or opportunity to reenter military service (if a waiver had been granted) but there is no evidence he attempted to do so.  

3.  Based on his 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.  In view of the foregoing, there is no 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)                                         AR20130013146





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ABCMR Record of Proceedings (cont)                                         AR20130013146



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