BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000900 


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 his discharge is unjust.  He was going through some difficult times.  His mother became very ill and then died.  He did not know how to handle the situation.  Additionally, his chain of command lied to him and told him his character of service would be listed as honorable.

3.  The applicant provides a self-authored statement and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 1 May 1979 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained was private first class/E-3.

3.  His record contains three DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) showing he accepted non-judicial punishment (NJP) on:

* 4 June 1980, for being absent from his place of duty 
* 3 October 1980, for disobeying the lawful order of a commissioned officer
* 20 November 1980, for being absent without leave (AWOL) from on or about 12 November 1980 through on or about 13 November 1980

4.  Summary Court-Martial Order Number 11, issued by Headquarters, 1st Brigade, 5th Infantry Division (Mechanized), Fort Polk, LA on 13 February 1981, convicted him of one specification of being AWOL from on or about 5 January 1981 through on or about 26 January 1981.  

5.  His record contains two DD Forms 458 (Charge Sheet), dated 22 January 1982 and 8 February 1982, that show he was charged with being AWOL from on or about 14 October 1981 through on or about 18 November 1981 and from on or about 1 December 1981 through on or about 3 February 1982.

6.  His record contains a Statement of Option – Medical Examination for Separation/Retirement, dated 8 February 1982 that shows he waived his right to a separation physical.

7.  His record contains a DA Form 2496-1 (Disposition Form), dated 19 January 1982 that shows he underwent a mental status evaluation on 9 February 1982, after which he was psychiatrically cleared for administrative action deemed appropriate by his commander.

8.  On 10 February 1982, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an other than 
honorable discharge, and the procedures and rights that were available to him.  
Subsequent to receiving this legal counsel and without coercion, he voluntarily 


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.  

9.  In this request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 25 February 1982, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to private/E-1.  

11.  On 9 March 1982, he was discharged accordingly.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  He completed 2 years, 5 months, and 15 days of creditable active service with     145 days of lost time.

12.  There is no indication that he applied to the Army Discharge Review Board for an upgrade 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.  Chapter 10 of that regulation provides, in pertinent part, 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 states 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.

	b.  Paragraph 3-7b states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel he voluntarily requested discharge for the good of the service 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.  Further, his discharge accurately reflects his overall record of service.

2.  His record contains 145 days of lost time due to AWOL, three instances of NJP under the provisions of Article 15 of the UCMJ, and one court-martial conviction which tarnished his overall record of service.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.  

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)                                         AR20140000900





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ABCMR Record of Proceedings (cont)                                         AR20140000900



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