IN THE CASE OF:	  

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130018370 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect, that no error or injustice exists but an upgrade of his discharge would allow him to compete for employment without appearing unreliable.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 30 September 2013.

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.  Having prior U.S. Army Reserve service, he enlisted in the Regular Army on 25 June 1992.  He completed his initial training and he was awarded military occupational specialty (MOS) 74C (Record Telecommunications Center Operator).

3.  On 27 January 1994, court-martial charges were preferred against him for being absent without leave (AWOL) from 28 June 1993 to 24 January 1994.

4.  On 27 January 1994, after consulting with legal counsel, he voluntarily requested a discharge 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.

5.  He acknowledged he understood he could request a discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct discharge.  This document shows he was charged with violating Article 86, AWOL and that he acknowledged:

* he was guilty of the charge against him or a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions as a result of his request
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge 
* as the result of such a discharge, he would be deprived of many or all Department of Veterans Affairs benefits
* 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 an under other than honorable conditions discharge

6.  He indicated that he did not intend to submit statements in his own behalf.

7.   The available evidence shows his chain of command recommended his  discharge from the Army for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge.

8.  On 14 March 1994, the appropriate separation authority approved his request for discharge under the provisions Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

9.  On 7 April 1994, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 2 months, and 17 days of active service during the period under review with time lost during the period 28 June 1993 to 23 January 1994 (210 days).

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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 under the UCMJ includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  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.  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.

   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 evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

2.  The Army does not have, nor has it ever had, a policy of upgrading discharges in order to make an individual eligible for employment.  It is unfortunate that the applicant is unable to obtain employment; however, the evidence shows he acknowledged he could expect to encounter substantial prejudice in civilian life because of the type of discharge he received.

3.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20130018370





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ABCMR Record of Proceedings (cont)                                         AR20130018370



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