IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130020399 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

	a.  Sometimes in life we all encounter certain decisions that we must make; whether right or wrong, we have to accept those decisions.

	b.  He looks back at the decision he made with regret.  He considered himself a good Soldier who was faced with a challenging decision.  His wife at the time was pregnant with their first child and she was experiencing complications.

	c.  His unit was preparing to deploy to Italy and he requested a change in his orders to remain stateside until the baby was born but the request went unheeded.

	d.  Seeing how distraught he was, several higher-ranking people suggested he could be processed out if he stayed away for 30 days.  Unfortunately, that was the decision he made.

	e.  He wishes there was a counselor at the time he could have spoken to about the consequences of his actions.  He had never been in trouble, he always followed orders, he attended the M-60 machine gun with top honors, and attended airborne school.

	f.  Over the past 27 years, he has had to live with that decision and he would deem it an honor if his status could be changed to honorable.  He had to overcome the disgrace he placed upon himself and he looks forward to being able to stand up straight and salute the flag of our country.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his real estate license.

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 military records are not available for review.  His records were requested from the repository in St. Louis, MO, without success.  This case is being considered based on his DD Form 214.

3.  His DD Form 214 shows:

	a.  He enlisted in the Regular Army on 3 January 1985 and he served in military occupational specialty 11B (Infantryman).

	b.  He was awarded or authorized the Army Service Ribbon, Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

	c.  He was discharged on 23 July 1986 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.

	d.  He was assigned a character of service of "under other than honorable conditions."

	e.  He accrued 54 days of time lost (from 17 April to 9 June 1986) for being absent without leave (AWOL).

4.  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.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred and must include the individual's admission of guilt.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service.

	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 applicant's request for an upgrade of his under other than honorable conditions discharge has been carefully considered.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  His record of indiscipline includes 54 days of time lost and presumably, court-martial charges.  Based on his record of indiscipline, his overall record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

4.  His post-service accomplishments were noted; however, without evidence of error or injustice in his separation processing, there is no basis to grant the applicant's 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 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)                                         AR20130020399



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ABCMR Record of Proceedings (cont)                                         AR20130020399



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