IN THE CASE OF:	  

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018530 


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 that his discharge under other than honorable conditions be upgraded to an honorable or general discharge.

2.  The applicant states that he was a young man when he enlisted and received no assistance from counsel or anyone else and he had post-traumatic stress disorder from a training accident and never saw anyone in mental health.  He also states that after getting out of the Army he became a productive functioning member of society.

3.  The applicant provides no additional documents with his application.

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 with parental consent on 25 May 1982 for a period of 3 years, training as an infantryman and assignment to the 9th Infantry Division at Fort Lewis, Washington.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Fort Lewis for his first and only assignment.

3.  On 12 February 1983, nonjudicial punishment was imposed against him for being disrespectful in language toward a superior noncommissioned officer.

4.  On 30 September 1983, he went absent without leave (AWOL) and remained absent in desertion until he surrendered to military authorities at Fort Sill, Oklahoma on 10 November 1983.  He was transferred to Fort Lewis where charges were preferred against him on 29 November 1983.

5.  On 29 November 1983, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood he could receive an undesirable discharge and that he might be deprived of all benefits as a result of such a discharge.  He elected to submit a statement in his own behalf whereas he asserted that he had made a mistake by joining the military and he had not liked it.  He went on to state that while he had made a mistake by going AWOL, he and his family were getting along better than ever and he did not want to ruin their relationship by staying in the Army.

6.  On 16 December 1983, the appropriate authority (a major general) approved his request for discharge and directed that he be furnished a a discharge under other than honorable conditions. 

7.  Accordingly, he was discharged on 29 December 1983 under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 5 months, and 23 days of total active service and had 40 days of lost time due to being AWOL.

8.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An discharge under other than honorable conditions was considered appropriate at the time.

10.  Army Regulation 635-200, 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.  

11.  Paragraph 3-7a provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the length of his absence, his overall record of service, and the absence of mitigating circumstances.  Additionally, there is no evidence to support his contention that he was suffering from PTSD or that he could not distinguish right from wrong and he did not raise that issue at the time.  Accordingly, his service simply did not rise to the level of even 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)                                         AR20130018530





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ABCMR Record of Proceedings (cont)                                         AR20130018530



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