IN THE CASE OF:	  

		BOARD DATE:	 12 June 2014

		DOCKET NUMBER:  AR20130018227 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states, in effect, he was 17 years old when he enlisted in the Army.  He was honored to serve in the Army and he only went absent without leave (AWOL) because his mother was abandoned by his step-father and the burden of her care and the care of his siblings weighed heavily on him.   He sought out his chain of command and the chaplain for assistance but with no success.  He even applied for the Reserve Officers’ Training Corps (ROTC) in order to be closer to his family but his commander would not provide him with the required authorization.  He contends he was never charged with an offense and that he was not properly counseled about his type of discharge.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and statement with attached arguments/contentions.

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.  On 1 August 1989, he enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 11B (Infantryman).

3.  Item 44 (Time Lost under Section 972, Title 10, United States Code) of his DA Form 2-1 (Personnel Qualification Record) shows he was AWOL during the period 28 December 1990 to 27 February 1991.

4.  His DD Form 458 (Charge Sheet), dated 6 February 1991, shows he was charged with being AWOL from 28 December 1990 to an unknown date.  This document is signed by the executive officer, Company A, 4th Battalion, 22nd Infantry, but is not signed by the applicant.

5.  His record shows he surrendered to military control on 28 February 1991 at Fort Ord, CA.

6.  His separation processing package was not available for review.  The specific facts and circumstances pertaining to his discharge are not on file.

7.  He was discharged on 17 May 1991 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.  He completed 1 year, 7 months, and 16 days of net active service that was characterized as under other than honorable conditions.  He had 72 days of time lost with no significant awards for valor or achievement. 

8.  He provides a statement wherein he argues/contends:

	a.  His performance and conduct during his period of service was exemplary.  He had no intent on remaining a deserter as evidenced by his surrender to military authorities.  He only went AWOL to care for his family.

	b.  He was not properly counseled and was only given two options: return to his unit and face the Article 15, Uniform Code of Military Justice (UCMJ), consequences or be discharged.  In the absence of legal counsel coupled by the fear of retaliation from his platoon, he elected to be discharged with an Other Than Honorable Conditions Discharge.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An discharge under other than honorable conditions would normally be furnished an individual who was discharged for the good of the Service.

	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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  He contends that his discharge should be upgraded because he was never charged or properly counseled in regard to the consequences of his election to be discharge.   

3.  The complete facts and circumstances of his discharge are not available; discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Although, his charge sheet was not signed by the applicant, absent evidence to the contrary, the applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  Based on his extensive period of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient evidentiary basis upon which to upgrade his under other than honorable conditions discharge to 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)                                         AR20130018227





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ABCMR Record of Proceedings (cont)                                         AR20130018227



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