IN THE CASE OF:	  

		BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130021487 


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. 

2.  The applicant states he would like his discharge upgraded due to mental issues experienced from stress. 

3.  The applicant does not provide any additional evidence. 

C+-ONSIDERATION 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 record shows he enlisted in the Regular Army on 2 November 1994 and he held military occupational specialty 95B (Military Police).  He was assigned to the 258th Military Police Company, Fort Polk, LA. 
3.  He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Marksman Marksmanship Qualification Badge with Pistol Bar (9mm). 

4.  On 8 May 1995, he departed his Fort Polk unit in an absent without leave (AWOL) status and on 9 June 1995, he was dropped from the rolls of his unit as a deserter.  He ultimately surrendered to military authorities at Fort Indiantown Gap, PA, and returned to military control on 7 July 1995. 

5.  On 10 July 1995, court-martial charges were preferred against him for one specification of AWOL from 8 May 1995 to 7 July 1995.

6.  On 10 July 1995, 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested 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 for discharge, he indicated/acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or an under other honorable conditions discharge
* understood if his request for discharge was accepted, he could be discharged under other than honorable conditions
* acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected to submit a statement in his own behalf 

7.  In his statement, the applicant indicated he went AWOL because of some personal problems that he had prior to entering military service.  These problems coupled with the stress of his job became too much.  He wanted to leave his duties but he did not think his chain of command was going to allow it so "he decided to take it foolishly upon himself."

8.  Also on 10 July 1995, the applicant acknowledged he understood he was not required to take a medical examination, which also included a mental status evaluation, for separation but he could request one if desired.  He marked the block "I do not desire a separation physical." 

9.  On 18 July 1995, his immediate commander recommended approval with the issuance of an under other than honorable conditions characterization of service. 

10.  On 21 July 1995, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by a court-martial.  He directed the applicant be reduced to the lowest enlisted grade (if applicable) and his service be characterized as under other than honorable conditions.  On 22 December 1995, the applicant was accordingly discharged.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in the rank/grade of private/E-1 with a character of service of under other than honorable conditions.  This form further shows he completed 11 months and 22 days of creditable active service with time lost from 8 May 1995 to 6 July 1995. 

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	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 applicant 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.  The applicant voluntarily, willingly, and in writing requested a 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.  Furthermore, his discharge accurately reflects his overall record of service.

2.  The applicant was AWOL and a deserter.  Upon return to military authorities not only did he admit to his AWOL, he requested voluntary discharge to avoid trial by a court-martial.  He could have elected trial by a court-martial if he believed he was innocent of the charges.  Likewise, he could have at least elected to undergo a separation physical if he really had so much stress that caused him to go AWOL.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is no basis for granting the applicant an honorable or 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)                                         AR20130021487





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ABCMR Record of Proceedings (cont)                                         AR20130021487



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