IN THE CASE OF: 

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130015355 


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 general discharge.

2.  The applicant states that the character of service he was given was unjustly  harsh for the offense for which he was discharged.  He had a herniated disc and in the process of recovery was allowed to go home to Maryland during recovery.  His girlfriend became ill and the doctors did not know if she would make it so he decided to remain until she was out of crisis.  He was due back from leave at 2100 hours and he called the duty sergeant and informed him that he would be late.  He returned at 2330 hours and learned the next day that he had been reported as being absent without leave (AWOL) and would be offered a discharge in lieu of trial by court-martial.  He accepted the administrative discharge not knowing the price he would pay for the characterization he received.

3.  The applicant provides a copy of his discharge certificate.

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 U.S. Army Reserve on 30 July 1979 for a period of 3 years.  He was ordered to active duty training on 20 August 1979 and was transferred to Fort Dix, New Jersey to undergo his basic training.

3.  On 2 October 1979, he went AWOL and remained absent in desertion until he was returned to military control at Fort Dix on 19 March 1980 where charges were preferred against him for the absence. 

4.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Baltimore, Maryland on 27 February 1981.  However, his records do contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that he was discharged under other than honorable conditions on 4 June 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served   3 months and 28 days of active service and had 167 days of lost time due to AWOL.  He was still in a trainee status.

5.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  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.  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 was considered appropriate at the time.

	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.  In the absence of evidence to the contrary, it must be presumed that 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 with no indication of any violations of the applicant's rights and that the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he would have 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 would have 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 the extensive length of his absence, the available evidence of record, and his otherwise undistinguished record of service.  Accordingly, his service does not rise to the level of even a general discharge.

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)                                         AR20130015355





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015355



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1