IN THE CASE OF: SLAUGHTER, DON M. 

		BOARD DATE: 22 May 2014

		DOCKET NUMBER:  AR20130016743


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 upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he did very well in basic and advanced individual training.  He tried to stay on as an acting drill instructor but was denied.   He then began to inquire about getting out of military occupational specialty (MOS) 11B (Infantryman).  He was told to report to his permanent duty assignment in Germany, and asked about changing his MOS there.  He could not get any assistance and became depressed.  He received nonjudicial punishment (NJP) and was reduced in rank.  He continued to do his job but was still depressed.  He went to the chaplain and his sergeant major, but neither could help him.  His request for leave was denied but he went home anyway.  When his father found out he was absent without leave (AWOL) he took the applicant to the Long Beach Naval Base where he surrendered to military authorities.  He then requested a chapter 10 discharge.  His commander in Germany wanted him to return there but he had already signed for his discharge.

3.  The applicant provides:

	a.  His DD Form 214 (Certificate of Release or Discharge from Active Duty).

	b.  Eleven character reference letters.

	c.  Three certificates relating to his service with his church and Christian training.
	d.  Two certificates relating to his employment.

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 30 July 1980.  He held MOS 11B.  

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Germany from 13 January through 14 November 1981 and was awarded the Expert Marksmanship Qualification Badge with Grenade Bar and the Marksman marksmanship Qualification Badge with Rifle Bar.  The highest rank he attained was private (PV2)/E-2.  

4.  On 28 June 1982, charges were preferred against the applicant for being AWOL from 21 November 1981 to 22 June 1982.

5.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a UOTHC discharge which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an UOTHC discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  

6.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The separation authority approved the recommendation on 28 July 1982.

7.  On 16 August 1982, the applicant was so discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He had completed a total of 1 year, 5 months, and 10 days of active duty service.  Time lost is shown as 17 to 20 April 1981, and 21 November 1981 to 
21 June 1982.

8.  On 28 February 1989, the Army Discharge Review Board determined he had been properly discharged and denied his request for a change in the type and nature of his discharge.  

9.  Army Regulation 635-200 provides 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 UOTHC 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.  The applicant has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.

2.  The applicant's character reference letters and the certificates he provided showing his accomplishments since his discharge were all reviewed; however, they are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to honorable or general.

4.  In view of the foregoing, there is no 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 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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20130016743



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