IN THE CASE OF:
BOARD DATE: 26 May 2014
DOCKET NUMBER: AR20130018979
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 to a General under honorable conditions discharge.
2. The applicant states:
* He believes there was no error or injustice
* He believes the Army was fair in their judgment
* There is no excuse for what he did
* It was a very bad decision on his part
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 (RA) for 3 years on 29 November 1979. He completed training as a infantryman.
3. On 25 November 1981, the applicant accepted nonjudicial punishment for being derelict in the performance of his duties by failing to secure his weapon.
4. On 4 November 1982, he reenlisted in the RA for 4 years.
5. The applicant went absent without leave (AWOL) on 17 March 1984. He remained absent until he surrendered to military authorities on 20 August 1984.
6. The facts and circumstances surrounding the applicant's discharge are not available. His DD Form 214 shows that on 28 September 1984 he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He completed 4 years, 4 months, and 27 days of net active service this period.
7. The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.
8. Army Regulation 635-200 (Personnel Separations) 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 3-7a 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 shows he was AWOL for over 5 months. It is presumed he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial. He could have elected to stand trial by court-martial; however, if convicted, he could have been issued a punitive discharge. His desire to have his discharge upgraded is not sufficiently mitigating to warrant the requested relief.
2. The applicant's period of AWOL rendered his service unsatisfactory. In the absence of evidence to the contrary, it is presumed he was discharged in accordance with the applicable regulation and the type of discharge he received appropriately characterizes his overall record of service. Therefore, his discharge should not be upgraded.
3. In view of the foregoing, there is no basis for granting the applicant a general or an honorable 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) AR20130018979
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ABCMR Record of Proceedings (cont) AR20130018979
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