IN THE CASE OF:	  

		BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130014280 


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 discharge under other than honorable conditions be upgraded to a more favorable discharge that will afford him benefits.

2.  The applicant states, in effect, that his discharge was unjust because the noncommissioned officers (NCOs) in his section were prejudiced against him and because he did not receive the help he needed for his problems with alcohol and depression.  He goes on to state that he took the discharge because he wanted out of the Army because of the way he was being treated.

3.  The applicant provides a two-page handwritten statement explaining his application, a five-page typewritten statement explaining his application, a 
nine-page typewritten statement from his former spouse of 32 years, one third-party character reference, and 15 documents consisting of commendatory certificates, evaluations, discharge, and awards.

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 21 March 1978 for a period of   4 years, training as a field wireman, and assignment to the 3rd Infantry Division in Europe.  He completed his one-station unit training at Fort Gordon, Georgia and was transferred to Germany on 8 June 1978, where he served until 3 June 1980 when he was transferred to Fort Polk, Louisiana.

3.  On 23 September 1981, he was honorably discharged for the purpose of immediate reenlistment and on 24 September 1981, he reenlisted for a period of 4 years, a selective reenlistment bonus, and assignment to Fort Belvoir, Virginia.  He remained at Fort Polk until 14 December 1981 when he was transferred to Fort Belvoir.  He was promoted to the rank of sergeant on 1 March 1983.

4.  On 8 March 1983 he received orders transferring him to Germany with instructions to report to the Overseas Terminal at Philadelphia International Airport on 26 June 1983 for onward movement to Germany.  He failed to report as ordered and was reported as being absent without leave (AWOL) effective 
26 June 1983.  He remained absent until he surrendered to military authorities on 30 June 1983.

5.  On 30 June 1983, nonjudicial punishment was imposed against him for being AWOL from 26 June to 30 June 1983.

6.  He was transferred to Germany on 1 July 1983 for assignment to a field artillery battery.

7.  On 14 October 1983, charges were preferred against the applicant for being AWOL from 24 August to 27 August 1983, two specifications of disobeying a lawful order from a superior noncommissioned officer, and being incapacitated for the proper performance of duties due to an overindulgence in alcohol.

8.  On 26 October 1983 after consulting with defense counsel, the applicant submitted a request for 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.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  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 also elected not to submit a statement in his own behalf.

9.  The appropriate authority approved his request for discharge and directed the applicant be given an under other than honorable conditions discharge. 

10.  On 22 November 1983, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 5 years, 7 months, and 24 days of active service during his current enlistment and had 6 days of lost time due to AWOL.  He was reduced to the pay grade of E-1 at discharge.

11.  On 27 August 1990, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a fully honorable discharge.  He contended at that time that his discharge was inequitable because it was based on a few bad incidents and the good things he had done were not considered.  He also stated that he believed that he should have gone to trial by court-martial because he would have received a better outcome.  After reviewing the evidence, the ADRB determined that his discharge was both proper and 
equitable under the circumstances and voted unanimously to deny his request on 8 May 1992.

12.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate 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 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.

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 and he was properly reduced to the pay grade of E-1.

2.  After being afforded the opportunity to assert his innocence 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.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given his repeated misconduct, his rank, and the lack of mitigating circumstances at the time.  He could have referred himself for help with any alcohol problem.

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130014280





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ABCMR Record of Proceedings (cont)                                         AR20130014280



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