IN THE CASE OF:	  

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130013403 


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 to an honorable discharge.

2.  The applicant states at the time his wife was having difficulty carrying his first child and she begged him not to go back into the service, so he went absent without leave (AWOL).  After his child was born, he turned himself in and was discharged.  He enjoyed being in the Army, but being young and family pressure to take care of family caused an error in judgment.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 was born on XX April 1961.  He enlisted in the Regular Army (RA) on 13 June 1979, for 3 years.  At the time of his enlistment, he was 18 years, 1 month, and 21 days of age.  He held military occupational specialty 91B (medical specialist).  He was promoted to pay grade E-4 on 1 October 1980. He served in Germany from 24 May 1981 through 5 August 1981.

3.  He was honorably discharged on 21 April 1981 for the purpose of immediate reenlistment.  He was not issued a DD Form 214 (Certificate of Release or Discharge from Active Duty).  He reenlisted in the RA on 22 April 1981 for 5 years.

4.  On 6 August 1981, his duty status was changed from ordinary leave to AWOL.  On 3 September 1981, he was dropped from the rolls of his organization.  On 13 April 1982, he surrendered to military authorities.

5.  On 14 April 1982, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Company, Personnel Control Facility, Fort Knox, KY.  The applicant was charged with one specification of being AWOL from 17 September 1981 through 13 April 1982.

6.  On 15 April 1982, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trail by court-martial.  He acknowledged he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

7.  On 27 April 1982, the separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

8.  On 1 June 1982, he was discharged accordingly.  He completed 2 years, 3 months, and 12 days of net active service with 236 days of time lost.  His DD Form 214 lists his immediate reenlistment on 22 April 1981.

9.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - a honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  Upon his return from a lengthy AWOL and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army.  He was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.   

2.  He was 18 years, 1 month, and 21 days of age when he enlisted in the RA.  He was 20 years, 6 months, and 27 days of age when he went AWOL and almost 21 years of age when he was returned to military control.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to 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)                                         AR20130013403





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ABCMR Record of Proceedings (cont)                                         AR20130013403



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