IN THE CASE OF: 

		BOARD DATE:	    20 May 2014 

		DOCKET NUMBER:  AR20130015590 


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 under other than honorable conditions discharge.

2.  The applicant states:

* his error was bad judgment
* he loved being in the military but drinking got the best of him
* he is in college to become a social worker and he has worked with alcoholics and addicts for the past 5 years
* he desires the opportunity to pay his debt to the U.S. Army by offering his services to help any way he can
* during his time as a paratrooper he had some traumatic things happen to him such as his father's death and a serious accident while en route to training at West Point 
* he got scared and went absent without leave (AWOL) after getting some bad advice
* he has always regretted not fulfilling his service obligation
* a few bad choices and alcohol and drugs only made things worse
* through struggling over the years he has started to get things in order to hopefully intern at the Department of Veterans Affairs (VA) hospital to help his fellow comrades
* if he could help someone in need, that would be his way of paying back the Army where he learned to be a man


3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* 15 certificates
* 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 14 June 1977.

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions:

* on 18 September 1978, for being AWOL from on or about 17 August to 28 August 1978
* on 28 November 1979, for being AWOL from on or about 30 July to 7 November 1979
* on 14 January 1980, for being AWOL from on or about 7 January to 9 January 1980
* on 10 April 1980, for failure to go to his place of duty at the time prescribed

4.  DA Forms 4187 (Personnel Action) show the applicant's duty status changed as follows:

* on 26 August 1980, from ordinary leave to AWOL
* on 5 September 1980, from AWOL to present for duty
* on 8 September 1980, from present for duty to AWOL
* on 30 September 1980, from AWOL to dropped from the rolls

5.  On 15 December 1980, the applicant surrendered to military authorities.  On the same date, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 8 September to 15 December 1980.

6.  On 17 December 1980, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he provided statements in his own behalf and requested a general discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant acknowledged:

* he was guilty of the charge against him or of a lesser included offense
* he understood that if his request was approved he could be discharged under other than honorable conditions 
* he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood that he could expect to encounter substantial prejudice in civilian life

7.  On 20 January 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an under other than honorable conditions discharge, and directed that he be reduced to the rank/grade of private/E-1.

8.  On 29 January 1981, the applicant was discharged as directed.

9.  The applicant provides self-authored statements, a DD Form 293, and 
15 certificates of achievement, recognition, or training.

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



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

	a.  Paragraph 1-7 of the regulation in effect at the time states, in pertinent part, that the type of discharge and character of service will be determined solely by the military record during the current enlistment or period of service, plus any extensions thereof from which the Soldier is being separated.

	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. 

	d.  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, an under other than honorable conditions discharge is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL on multiple occasions, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge process.

3.  He willingly requested the voluntary discharge when court-martial charges were preferred against him.  He could have elected trial by the court-martial if he believed there were extenuating circumstances. 

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to an honorable or a general discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130015590



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ABCMR Record of Proceedings (cont)                                         AR20130015590



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