IN THE CASE OF:	  

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130016641 


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 character of service.

2.  The applicant states:

	a.  he was a 3rd year generation Army Junior Reserve Officers' Training Corps  member in high school;

	b.  he enlisted in the Regular Army for 3 years from 1985 to 1988 and received an honorable discharge and an Army Good Conduct Medal;

	c.  during his enlistment from 1988 to 1991 he received an under other than honorable discharge;

	d.  he fathered a child as a single Soldier and paid 9 months of child support which was equivalent to his basic authorization for quarters (BAQ) during his change of duty station;  

	e.  when his first sergeant (1SG) saw his leave and earnings statements (LESs) showing the applicant receiving BAQ, without anyone in his chain of command or legal services discussing it with him, the 1SG initiated a stop payment which resulted in him being in violation of his child support agreement without determining why his previous command authorized BAQ for his child;

	f.  he was arrested due to nonpayment of child support due to continuous "no pay due" on his LESs because of the recoupment by the Army;
	g.  once released, he returned to find his car was repossessed, no money, and being extremely depressed and angry so he went absent without leave (AWOL).

	h.  when he was taken to Fort Dix, NJ for processing, he was not given any counsel and only two alternatives -- court-martial or an other than honorable discharge for the good of the military; and 

	i.  he was young, scared, and felt he had no alternatives due to the lack of counsel.

3.  The applicant provides:

	a.  two DD Forms 4/1 (Enlistment/Reenlistment Documents Armed Forces of the United States); 

	b.  a DA Form 695 (Oath of Extension of Enlistment); and 

	c.  three pages of his DA Form 2-1 (Personnel Qualification Record).

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's record shows he enlisted in the Regular Army on 12 June 1985.  

3.  The applicant's records contain:

	a.  a disciplinary history which shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period 31 January to 2 February 1989.
	b.  a DD Form 458 (Charge Sheet), dated 2 April 1991, which shows a court-martial charge was preferred against him for two specifications of being AWOL during the periods 13 March to 26 June 1989 and 27 June 1989 to 2 April 1991.

4.  On 11 April 1991, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

5.  On 15 April 1991, the applicant's unit commander transmitted the applicant's request for separation to the battalion commander and recommended the issuance of a discharge under other than honorable conditions.

6.  On 28 May 1991, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and the issuance of a discharge under other than honorable conditions.

7.  On 19 June 1991, the applicant was discharged accordingly.  He completed 4 years, 2 months, and 24 days of creditable active service with 664 days of lost time.

8.  On 16 December 1998, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge.

9.  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 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 evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.  He had an opportunity at the time to mention the mitigating factors he now raises but failed to take that opportunity.

2.  His service records show he was absent without authority for a total of 664 days.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In view of the foregoing evidence, there is an insufficient basis for upgrading his 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)                                         AR20130016641





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ABCMR Record of Proceedings (cont)                                         AR20130016641



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