IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130016201 


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 his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states at the time of his discharge, he was young and under pressure to be there for his family as his parent was ill.  It has now been more than 25 years and his discharge has hindered his ability for employment and decent housing.

3.  The applicant provides no additional evidence.

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 10 April 1981 when he was almost 18 years of age.  He was assigned to the 5th Replacement Detachment, Fort Polk, LA.  

3.  On 29 August 1981, he was reported as absent without leave (AWOL) from his assigned unit and he was subsequently dropped from the rolls (DFR) as a deserter.  On 10 October 1981, he returned to military control at Fort Polk. 

4.  On 10 November 1981, he was convicted by a special court-martial of one specification of being AWOL from 29 August to 10 October 1981.

5.  On 28 November 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order.

6.  He was subsequently assigned to the School Brigade, Aberdeen Proving Ground (APG), MD.  On 17 May 1982, he was reported as AWOL from his assigned unit and he was DFR as a deserter.

7.  On 28 February 1983, he returned to military control and was assigned to the U.S. Army Personnel Control Facility (PCF), Fort Dix, NJ.

8.  On 28 February 1983, he was reported as AWOL from his assigned unit and he was DFR as a deserter.

9.  On 30 August 1984, he returned to military control at the PCF, Fort Dix.  On a PCF interview sheet, he stated he went AWOL from APG because of personal problems.  He also stated he had not taken any action or utilized any Army channels to solve his problems before going AWOL.

10.  On 30 August 1984, court-martial charges were preferred against him for one specification each of being AWOL from 17 May 1982 to 28 February 1983 and 28 February 1983 to 30 August 1984.

11.  On 31 August 1984, he 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 or 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 requested 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.

12.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

13.  On 20 September 1984, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 10 October 1984, he was discharged accordingly.  

14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service - in lieu of court-martial, with an under other than honorable conditions characterization of service.  He completed 1 year and 12 days of net active service with 879 days (or 2 years, 4 months, and 26 days) of lost time due to being AWOL.

15.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  Army Regulation 635-200, 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.



18.  Army Regulation 635-200, 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 evidence of record shows the applicant was charged with the commission of a serious 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  The applicant contends his discharge should be upgraded because he was young and under pressure at the time of his service.  Records show he was 21 years of age at the time of his last offense.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  In addition, if there were mitigating reasons for his repeated AWOLs, he could have brought them to his commander's attention prior to going AWOL and requested assistance in resolving them.  However, in a 30 August 1984 interview he stated he had chosen not to do so.  Regardless, having an ill parent or personal problems are not valid reasons for going AWOL.

5.  His record of service shows he received NJP for disobeying a lawful order, was convicted by a special court-martial for going AWOL, and subsequently went AWOL on two more occasions.  At the time of his discharge, he had just over 1 year of net active service and almost 2 and 1/2 years of lost time due to being AWOL.  

6.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130016201





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ABCMR Record of Proceedings (cont)                                         AR20130016201



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