IN THE CASE OF:	  

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130015172 


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 honorable.

2.  The applicant states he completed 2 years and 5 months of his 3 year enlistment.  He served his country.  He admits he made a mistake by not returning when he was absent without leave (AWOL), and he is sorry.  He never had an opportunity to apologize for his mistake.

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 enlisted in the Regular Army on 17 March 1983 and held military occupational specialty 43E (Parachute Rigger).  The highest rank/grade he attained was specialist four/E-4.

3.  His record contains a letter of reprimand, dated 23 May 1985, reprimanding him for being arrested in Fayetteville, NC for suspicion of driving while impaired.  A breath analysis revealed his blood alcohol content was 0.17.

4.  His record contains a DD Form 458 (Charge Sheet), dated 25 March 1987, which shows court-martial charges were preferred against him for being AWOL from on or about 6 January 1986 to 20 March 1987.

5.  On 25 March 1987, he signed an admission of AWOL statement wherein he knowingly, willingly, and voluntarily declared that he had been AWOL from 
6 January 1986 to 20 March 1987.

6.  On 26 March 1987, 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 charge which had been preferred against him IAW the Uniform Code of Military Justice (UCMJ), authorizing the imposition of a bad conduct or dishonorable discharge.  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 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.

7.  He acknowledged that prior to completing his request for discharge he had 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 legal advice his request for discharge was his own decision.  He acknowledged that he had been advised he could submit any statements he desired in his own behalf with his request for discharge.  However, there were no statements attached to his request for discharge.  

8.  On 26 March 1987, 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.  He was also reduced to the rank of private.

9.  On 4 May 1987, 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 2 years, 11 months, and 4 days of creditable active service with 438 days of lost time.

10.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his characterization of service within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, chapter 10 states 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.

	a.  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.

	b.  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 438 days of lost time 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)                                         AR20130015172



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ABCMR Record of Proceedings (cont)                                         AR20130015172



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