IN THE CASE OF:	  

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130018263 


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 to general under honorable conditions.

2.  He states he was a young Soldier who made a bad decision that he regrets.  His overall performance in the Army, including service during Operations Desert Shield/Desert Storm, was honorable.  An upgrade of the character of his service will help him start making amends for his past wrongs.

3.  He provides:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* High School Equivalency Diploma
* Certificate of Completion in Data Processing Technology
* Certificate of Employability Skills in Construction Electrical Technology

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 11 May 1989, the applicant enlisted in the Regular Army at 17 years of age.  After completing initial entry training, he was awarded military occupational specialty 88M (Motor Transport Operator).

3.  On 30 April 1990, his company commander imposed nonjudicial punishment against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 0630 hours to 1630 hours on 16 April 1990.  The applicant appealed the punishment and his appeal was denied.

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

* item 5 (Oversea Service) – he served in Saudi Arabia from 14 September 1990 through 5 April 1991
* item 9 (Awards, Decorations, and Campaigns) – he was credited with participation in the Defense of Saudi Arabia and Liberation and Defense of Kuwait campaigns
* item 21 (Time Lost) – he was AWOL from 20 to 23 September 1991 and from 4 to 29 October 1991

5.  A DA Form 638 (Recommendation for Award of the Legion of Merit and Below) shows he was awarded the Army Achievement Medal for the period 13 September 1990 through 18 February 1991.

6.  A DD Form 458 (Charge Sheet), dated 11 December 1991, shows he was charged with three specifications of violating Article 86 (AWOL), UCMJ.  His periods of AWOL were:

* 20 to 23 September 1991
* 4 to 29 October 1991
* 2 December 1991

7.  On 18 December 1991, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the UCMJ, the effects of discharge under other than honorable conditions, and the rights available to him.

8.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He acknowledged that:

* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charge against him or of a lesser-included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be discharged under conditions other than honorable and furnished an Under Conditions Other than Honorable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions

	b.  He indicated he would submit a statement in his own behalf.

9.  He stated he had never really adapted to military life because of personal problems.  He asked the separation authority to consider his service in support of Operations Desert Shield/Desert Storm and give him a general discharge.

10.  The separation authority approved the applicant's request for discharge for the good of the service and directed his discharge under other than honorable conditions.  On 3 January 1992, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 2 years, 6 months, and 24 days of net active service with 28 days of lost time.

11.  On 13 December 1996, the President, Army Discharge Review Board, informed the applicant that his request for a change in the character of and/or reason for his discharge had been denied.

12.  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 3-7b 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.

13.  The version of the Manual for Courts-Martial in effect at the time provided that the maximum punishment for being AWOL for not more than 3 days was confinement at hard labor for 1 month and forfeiture of two-thirds pay for 1 month.  The maximum punishment for being AWOL for more than 3 but not more than 30 days was confinement at hard labor for 6 months and forfeiture of two-thirds pay for 6 months.  Part II, Rules for Courts-Martial, rule 1003 (Punishments), states that if an accused is found guilty of two or more offenses for none of which a dishonorable or bad conduct discharge is otherwise authorized, the fact that the authorized confinement for these offenses totals 6 months or more authorizes a bad conduct discharge and forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant's records show he was charged with three specifications of being AWOL, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

2.  He contends that he was a young Soldier who made a bad decision.  His records show he was only 17 years of age at the time of his offenses.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service.  His records show he was well advised and fully aware of the consequences of his decision to request discharge in lieu of trial by court-martial.

3.  His contention that his overall performance in the Army was honorable was carefully considered.  There is no documentary evidence of exceptionally meritorious or heroic service that might serve as a basis for changing the characterization of his service.  Further, there is no evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.

4.  Based on his periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is an insufficient basis upon which to grant the 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)                                         AR20130018263



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ABCMR Record of Proceedings (cont)                                         AR20130018263



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