IN THE CASE OF:	  

		BOARD DATE:	 15 July 2014 

		DOCKET NUMBER:  AR20130020037 


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, in effect, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states:

* he was absent without leave (AWOL) for only 5 months due to anxiety and family conditions
* his only offense in the Army was being AWOL – his family problems caused him anxiety
* he needs the upgrade to seek employment in Puerto Rico 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) written in a foreign language.

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's records show he enlisted in the Regular Army on 19 September 1977 and he held military occupational specialty 13B (Cannon Crewmember).

3.  He served in Germany from 9 January 1978 to 7 January 1980.  He was advanced to the rank/grade of specialist four/E-4 effective 16 November 1979.

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was awarded or authorized the Humanitarian Service Medal, Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Grenade Bar.

5.  On 15 July 1980, he departed his unit in an AWOL status and he returned to military control on 22 July 1980.

6.  On 29 July 1980, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL.

7.  On 21 August 1980, he was convicted by a summary court-martial of one specification of being incapacitated for the proper performance of his duties due to previous indulgence in intoxicating liquor and one specification of breaking restriction.  The court sentenced him to a reduction to E-3, forfeiture of pay, and restriction.  The approving authority approved his sentence on 8 September 1980.

8.  On 29 August 1980, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct (court-martial conviction and AWOL).  He was provided with a copy of this bar, but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority.

9.  On 28 April 1981 after a weekend pass, he failed to return to duty and he was reported as AWOL.  On 28 May 1981, he was dropped from the Army rolls as a deserter.  He ultimately returned to military control on 2 August 1981.

10.  On 25 August 1981, court-martial charges were preferred against him for one specification of being AWOL from 28 April to 2 August 1981.

11.  On 1 September 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service

12.  On 2 and 9 September 1981, his immediate, intermediate, and senior commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

13.  On 14 September 1981, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. 
On 18 September 1981, he was discharged accordingly.

14.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 3 years, 7 months, and 21 days of creditable active service and he had lost time from 15 to 23 July 1980 and 28 April to 1 August 1981.

15.  On 11 February 1997, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge.

16.  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.  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.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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 applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  The applicant's records do not show he had family problems at the time.  There is no evidence he addressed his alleged problems with his chain of command or other support channels at his installation.  There would have been other legitimate avenues to address those problems and resolve them had the applicant elected to choose those options.

3.  The evidence of record clearly shows he chose to be AWOL and the court-martial charges were related to AWOL.  He was advised of his rights and knew the implications of his choice.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.

4.  Based on his record of indiscipline, which included an Article 15, a bar to reenlistment, a summary court-martial conviction, two periods of AWOL, and court-martial charges, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's 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 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)                                         AR20130020037



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130020037



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1