BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130014457 


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 fully honorable discharge.

2.  The applicant states that his discharge does not reflect his honorable service to his country.  He goes on to state that he was and still is a Soldier and a person who does the right thing and was proud of his service.  He further states that he endured unfair treatment at the time of his discharge and no consideration was given to his efforts to rectify any wrong doings.  He also states that he desires to better himself by going to school and trying to be a model in society and to demonstrate that anything is possible when you believe.  

3.  The applicant provides a four-page personal statement and a two-page statement explaining his application, a copy of a letter to his Congressional Representative, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), court-martial orders, documents from his records, third-party letters of support, program completion certificates, and documents from the Department of Veterans Affairs related to his rating decision and treatment.

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 11 November 1975 for a period of 3 years, training as an infantryman and assignment to Fort Benning, Georgia.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Polk, Louisiana before being transferred to Fort Benning, Georgia on 5 April 1976.

3.  On 18 June 1976, nonjudicial punishment (NJP) was imposed against him for the wrongful possession of marijuana.

4.  On 8 November 1976, NJP was imposed against him for failure to go to his place of duty.

5.  On 19 January 1977, NJP was imposed against him for using a false document and for failure to go to his place of duty. 

6.  On 16 November 1977, NJP was imposed against him for failure to go to his place of duty.

7.  The applicant’s records show that he was absent without leave (AWOL) during the periods 1-4 March 1979 and 8-13 May 1979.  However, the record is silent as to any punishment imposed.

8.  On 13 September 1979, he was convicted pursuant to his pleas by a general court-martial of being AWOL from 13 June to 18 June 1979, larceny, and housebreaking.  He was sentenced to confinement at hard labor for 1 year, a forfeiture of $209.00 pay per month for 12 months and reduction to the pay grade of E-1.

9.  The court-martial order directed that pending completion of the appellate review, the applicant would be confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas or elsewhere as competent authority may direct.

10.  He was transferred to Fort Leavenworth on 19 September 1979 and on        31 January 1980 the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
11.  On 7 March 1980, he was transferred to the U.S. Army Retraining Brigade (USARB) at Fort Riley, Kansas to serve the remainder of his sentence.

12.  On 21 March 1980, the Commander, USARB suspended the unexecuted portion of his sentence pertaining to confinement at hard labor until 16 July 1980, at which time, unless sooner vacated, it would be remitted without further action.

13.  On 22 May 1980, the applicant again went AWOL and remained absent in desertion until he was returned to military control on 12 August 1980.  He again went AWOL on 29 August 1980 and remained absent in desertion until he was apprehended by civil authorities in Columbus, Georgia who answered a call of a domestic disturbance and they discovered that the applicant was AWOL.  He was arrested and returned to military control on 15 August 1981.  He was transferred to Fort Bragg, North Carolina where charges were preferred against him for the two absences.

14.  The applicant was interviewed upon return to military control and stated that his 350 days of AWOL were caused by problems he encountered in the Army and that he wanted a discharge.  He also stated that he would continue to go AWOL if he was not discharged.

15.  On 19 August 1981, 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 to submit a statement in his own behalf; however, there is no indication that he did so.  He was placed on excess leave on 
21 August 1981 pending the outcome of his request.

16.  The appropriate authority approved his request for discharge on                 21 December 1981 and directed the applicant be given an under other than honorable conditions discharge. 

17.  On 31 December 1981, he was discharged under other than honorable conditions 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 4 years,         1 month, and 29 days of active service and had 728 days of lost time due to AWOL and imprisonment.  

18.  There is no evidence in the available evidence to show that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

19.  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.  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 and the lack of mitigating circumstances at the time.  

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)                                         AR20130014457





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ABCMR Record of Proceedings (cont)                                         AR20130014457



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