BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130018182 


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 discharge.

2.  The applicant states, in effect, he admits being absent without leave (AWOL), but he had no choice because his commander was involved in criminal activity (drug trafficking). He further states he was not provided any legal assistance through military or civilian channels, he did not sign any discharge paperwork, and he now needs his discharge upgraded to qualify for veterans' medical benefits.

3.  The applicant provides a self-authored statement and copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and driver's license.

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 11 March 1982.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).

3.  On 19 June 1984, charges were preferred against the applicant for being AWOL during the period 28 October 1983 through 18 June 1984.

4.  On 20 June 1984 after consulting with counsel, the applicant voluntarily submitted a 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.  The applicant indicated that he understood he could be discharged under other than honorable conditions, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if such a discharge were issued to him.

5.  On 6 July 1984, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.

6.  His DD Form 214 shows he was discharged under other than honorable conditions on 31 July 1984.  He completed a total of 1 year, 5 months, and 27 days of active service with 325 days of lost time due to being AWOL.  Records indicate the 325 days of lost time included the following periods of AWOL:

* 3 through 4 January 1983
* 29 April through 2 May 1983
* 2 June through 27 August 1983
* 28 October 1983 through 18 June 1984

7.  The applicant provided a self-authored statement which essentially states he was, in fact, using drugs while serving on active duty.  He states that during the purchase of drugs with a fellow Soldier, his battalion commander at the time opened the door to the house where he would obtain these drugs and was the individual selling the drugs.  The applicant also states that both military and civilian lawyers would not help him in this matter.  The applicant indicates he was advised to be AWOL and then turn himself in because he would then be discharged without losing his military benefits.

8.  There is no evidence in the available records and the applicant did not provide any evidence which supports the allegations that he sought assistance through military or civilian legal channels for issues involving drug trafficking with his commander.  The applicant met with military counsel at the time of his voluntary request for discharge from the Army.

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

10.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on the applicant's record of indiscipline which includes 325 days lost time due to being AWOL, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory.

4.  There is no evidence in the available records and the applicant did not provide any evidence which shows that his acts of indiscipline were a direct result of misconduct by his commanding officer.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for benefits.  Each case is decided on its own merits.

6.  Based on the foregoing evidence, the applicant is not entitled to an upgrade to 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 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)                                         AR20130018182



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ABCMR Record of Proceedings (cont)                                         AR20130018182



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