IN THE CASE OF:	  

		BOARD DATE:	    13 March 2014

		DOCKET NUMBER:  AR20130013629 


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 characterization of service from under other than honorable conditions to under honorable conditions (general).

2.  The applicant states that in 1986, while he was assigned to Korea, he went home to North Carolina for a family emergency.  He was unable to "hop" back to Korea.  He turned himself in at Fort Bragg, NC after several unsuccessful attempts to return and served 2 weeks at Fort Knox, KY for being absent without leave (AWOL).

3.  The applicant provides two letters of support, dated 28 June 2013, and 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 enlisted in the Regular Army on 7 April 1983 and held military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  His record contains three DA Forms 4187 (Personnel Action), dated 
20 January 1987, 17 February 1987, and 22 June 1988 which show he was AWOL from 15 January 1987 to 19 June 1988 (1 year, 5 months, and 4 days/521 days).

4.  His record contains an admission of AWOL for administrative purposes, wherein he knowingly, willingly, and voluntarily declared that he was AWOL from 15 January 1987 to 19 June 1988.  Additionally, he stated that he made this admission for administrative purposes so that he could process out of the Army and realized that in doing so  he could be given an under other than honorable conditions discharge.

5.  His record contains a charge sheet, dated 24 June 1988, showing he was charged with being AWOL from 15 January 1987 to 19 June 1988.

6.  On 27 June 1988, he voluntarily requested discharge for the good of the service in accordance with (IAW) Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (For the Good of the Service - in Lieu of Court-Martial).  He understood that he may request discharge for the good of the service because of the following charges which had been preferred against him IAW the Uniform Code of Military Justice (UCMJ), each of which authorizes the imposition of a bad conduct or dishonorable discharge.  

	a.  He stated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person and had been advised of the implications that were attached to his request.  He acknowledged that by submitting this request for discharge that he understood the elements of the offenses charged and was guilty of some or all of the charges against him or of lesser included offenses therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstance did he desire further rehabilitation because he had no desire to perform further military service.

	b.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation.  He consulted with counsel and was fully advised of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also acknowledged that counsel advised him of the possible defenses which appeared to be available at the time, the maximum permissible punishment if found guilty, and of the legal significance of his discharge.  He indicated that although he had been furnished with legal advice, his request for discharge was his own decision.

	c.  He acknowledged he understood that if his request for discharge was accepted he could be discharged under conditions other than honorable.  He had been advised and understood the possible effects of an under other than honorable conditions discharge, that as a result of the issuance of an under other than honorable conditions discharge he would be deprived of many or all Army benefits, he could be ineligible for many benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He further understood that there was no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished to have his discharge reviewed.  He acknowledged that he realized the act of consideration by either board did not imply that his discharge would be upgraded.

	d.  He acknowledged he understood that once his request for discharge was submitted it could be withdrawn only with the consent of the commander exercising court-martial authority, or without that commander's consent in the event a trial results in an acquittal or the sentence does not include a punitive discharge even though one could have been adjudged by the court.  He further understood that if he were to depart absent without leave his request would be processed and he could be discharged even though he was absent.

	e.  He acknowledged that he had been advised he could submit any statements he desired in his own behalf to accompany his request for discharge. However, there were no statements attached to his request for discharge.  

7.  On 30 June 1988, the court-martial convening 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 court-martial, with an under other than honorable conditions discharge and reduction to private (PV1)/E-1.

8.  On 5 August 1988, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  His DD Form 214 shows he completed 3 years, 10 months, and 25 days of creditable active service with 521 days of lost time.

9.  On 18 October 1993, the ADRB, after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for an upgrade.

10.  He submitted two letters of support, dated 28 June 2013.  Both letters indicated that the individual who signed the letter knew him well and that the applicant was an active member of the community and his church.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  His record contains 521 days of lost time due to AWOL which tarnished his overall record of service.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.  

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)                                         AR20130013629





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013629



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1