BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140000683 


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 discharge under other than honorable conditions.

2.  The applicant states:

* he received his character of service because he had a family emergency and needed an expedited exit from the service to care for his mother and two sisters after his father deserted them
* he had been on a medical profile and was awaiting a medical evaluation board to evaluate injuries to his leg and back
* he explained his situation to his commander and he was told he could get out quickly with little loss of the benefits he had earned if he accepted his discharge
* he trusted his commander
* since he was allowed to serve in the U.S. Army Reserve (USAR) and Army National Guard (ARNG), he thought his previous discharge no longer lingered over him
* he attempted to qualify for Department of Veterans Affairs (VA) health care services and was told his discharge did affect his veteran status
* he served honorably in both the USAR and ARNG
* he is currently a sheriff and a volunteer fire fighter and he believes his service deserves to be upgraded



3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Headquarters, Utah National Guard, Orders 193-011,dated 11 July 2000
* U.S. Army Personnel Command Orders D-06-223788, dated 11 June 2002
* Honorable Discharge Certificate
* four letters of recommendation

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 20 June 1988.

3.  The applicant's duty status changed as follows:

* on 10 July 1989, from present for duty to absent without leave (AWOL)
* on 10 August 1989, from AWOL to dropped from the rolls
* on 13 October 1989, from dropped from the rolls to returned to military control and present for duty

4.  On 24 October 1989, charges were preferred against the applicant for being AWOL on or about 10 July 1989 until on or about 13 October 1989.

5.  On the same date, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge; the effects of requesting discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and the rights available to him.

6.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that:

* he understood he could be discharged under other than honorable conditions 
* as a result of such a discharge, he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge
* he did not elect to submit a statement on his own behalf

7.  On 8 March 1990, the separation authority approved the applicant's request and directed he receive an under other than honorable conditions discharge and his reduction to the lowest enlisted grade.

8.  On 21 March 1990, he was discharged accordingly.  He completed 1 year, 5 months, and 27 days of active service and he had 95 days of lost time during the period 10 July 1989 to 12 October 1989.

9.  Subsequent to his discharge from the Regular Army, he served in the Utah ARNG during the period 7 June 1995 through 1 February 2000.  He was discharged due to unsatisfactory participation and his service was characterized as general (under honorable conditions).  He was transferred to the USAR Control Group (Reinforcement) and he was honorably discharged on 11 June 2002.

10.  The applicant provided his separation orders, DD Form 214, NGB Form 22, and four letters of recommendation from individuals who attest to his character and work ethics.

11.  His records are void of any evidence showing he requested a hardship discharge or that he sought the assistance of his command.

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



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

	a.  Chapter 1 of the version in effect at the time stated the type and character of separation issued upon administrative separation from the current enlistment or period of service would be determined solely by the member's military record during that enlistment or period of service, plus any extensions thereof prescribed by law or by the Secretary of the Army or accomplished with the consent of the member.

	b.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would 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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge would normally be given to an individual who was discharged for the good of the service.

	c.  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.

	d.  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 Uniform Code of Military Justice 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.

2.  The applicant 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.

3.  When presented with the court-martial charges and after consulting with counsel, he elected not to make a statement explaining his AWOL as he now does.

4.  The evidence of record clearly shows he violated the Uniform Code of Military Justice and then willingly elected discharge instead of facing a trial by court-martial.  He could have elected a trial if he believed he was innocent or the charges were untrue.

5.  Therefore, there is an insufficient basis upon which to grant the 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 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)                                         AR20140000683



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ABCMR Record of Proceedings (cont)                                         AR20140000683



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