BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130021319 


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 be upgraded to a more favorable discharge.

2.  The applicant states he needs his discharge upgraded so he can obtain health benefits and believes he deserves an upgrade because he served faithfully for 6 years.

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 on 30 September 1972 for a period of 4 years.
3.  He completed his basic training at Fort Polk, LA and he was transferred to Fort Hood, where he underwent his advanced individual training as a cannoneer.

4.  On 29 June 1974, he was honorably discharged for the purpose of immediate reenlistment and on 30 June 1974 he reenlisted for a period of 6 years.

5.  On 27 August 1974, he was transferred to Greece and served there until 
19 September 1975 when he was transferred to Fort Sill, OK.

6.  On 12 January 1976, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 29 December to 31 December 1975.

7.  On 27 April 1978, he accepted NJP for disobeying a lawful order from and being disrespectful in language toward a superior noncommissioned officer.

8.  On 22 October 1980, he was convicted by a summary court-martial of being AWOL from 5 July 1978 to 12 September 1980 (800 days).  His sentence consisted of a reduction to the pay grade of E-2 and restriction.  He was transferred to Fort Riley, KS on 30 October 1980.

9.  On 19 February 1982, he again went AWOL and remained absent in desertion until he was returned to military control on 22 June 1982 and charges were preferred against him at Fort Sill for his absence.

10.  On 25 June 1982, after consulting with defense counsel, the applicant submitted a request for 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.  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 also admitted he was guilty of the charges against him or lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive an under other than honorable conditions discharge and he might be deprived of all benefits as a result of such a discharge.  He also elected to not submit a statement in his own behalf.

11.  The appropriate authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge. 

12.  On 27 July 1982, 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 a total of 7 years, 3 months, and 16 days of creditable active service with 970 days of time lost due to AWOL.

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

14.  Army Regulation 635-200 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 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 with no indication of any violations of the applicant's rights.  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 discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the length of his absences and his otherwise undistinguished record of service.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge for his last enlistment.

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)                                         AR20130021319





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ABCMR Record of Proceedings (cont)                                         AR20130021319



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