IN THE CASE OF: 

		BOARD DATE:	    26 June 2014

		DOCKET NUMBER:  AR20130018184 


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 under other than honorable conditions.

2.  The applicant states:

* he was home on a pass after basic combat training; he had a car wreck and his common law wife and daughter were hurt
* his wife was in the hospital, in a coma for 7 days and he stayed with her until they got better
* the Army did not recognize his common law wife as his lawful wife and their kids (he had two children and one on the way)
* he was told to take the discharge or go to jail

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's records show he enlisted in the Regular Army on 19 January 1981.  He did not complete advanced individual training.  

3.  On 17 March 1981, he departed his unit in an absent without leave (AWOL) status.  He was apprehended by civil authorities in Union, SC, on 2 July 1981 and returned to military control on that date. 

4.  On 14 July 1981, court-martial charges were preferred against him for one specification of being AWOL from 17 March to 2 July 1981. 

5.  On 15 July 1981, the applicant consulted with legal counsel and he was advised 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested 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 acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service

6.  On 20 July 1981, his immediate commander, after interviewing the applicant, recommended approval with the issuance of an under other than honorable conditions discharge.  He stated: 

	a.  The Soldier stated that he was aware of the nature of the interview and the consequences of a discharge under other than honorable conditions.  He desires elimination from the service under the provisions of chapter 10, Army Regulation 635-200, under less than honorable conditions.

	b.  The Soldier stated that his approximate 107 days of AWOL were caused by family problems.  He stated that his wife and daughter were severely injured in an automobile accident while he was attending advanced individual training at Fort Jackson, SC and that they were in intensive care for a month, subsequently being confined to bed rest by their doctor.  He went on to say that he was needed at home to help care for them and felt that they were more important than his obligation to the Army; therefore, he departed AWOL from Fort Jackson and returned home.  

	c.  The Soldier also stated during the interview that he had no desire to remain in the Army and that he would not have returned to military control had he not been arrested on 2 July 1981 by the Union, SC police, subsequently being turned over to military authorities and transported to this facility, arriving on 14 July 1981.  He stated that he would go AWOL again, if necessary, to be with his family.

	d.  In view of his attitude toward the military, and his lack of rehabilitative potential, he (the commander) recommends a discharge under other than honorable conditions.

7.  The senior commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

8.  On 30 July 1981, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 26 August 1981, he was discharged accordingly.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 3 months and 24 days of creditable active service.

10.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within the 15-year statute of limitations. 

11.  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 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.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

	b.  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's record shows he 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  The applicant's family problems at the time are noted.  However, there were legitimate avenues to address those problems and resolve them had the applicant elected to choose those options.  For example, there is no evidence he requested from his commander emergency or advanced leave or attempted to extend an existing leave to attend to his family.  

3.  The evidence of record clearly shows he chose to go AWOL and the court-martial charges were related to his AWOL.  He was advised of his rights and knew the implications of his choice.  He chose discharge in lieu of a court-martial to avoid a conviction and a punitive discharge.   

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge to either an honorable or 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)                                         AR20130018184



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ABCMR Record of Proceedings (cont)                                         AR20130018184



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