IN THE CASE OF:	  

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140000904 


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 to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he went on leave and had purchased a roundtrip ticket.  The morning he was scheduled to return to his unit he discovered that his ticket had been stolen.  He called the police and they came and took his statement.  The police told him that they could take him to the bus station, but that was all they could do.  He then called Oakdale Army Base, PA and they said there was nothing they could do to help him get back to his unit and this upset him.  His unit was out in the field so, he could not reach them via telephone.  He finally contacted a recruiting unit in Ohio and they said they would see what they could do to help him.  They called him back two-and-a-half weeks later and said they could get him a ticket to Fort Knox, KY if he desired; to which he replied "yes, of course."

3.  Upon his arrival at Fort Knox, he gave the lady a copy of the police record of where he called them about the theft of his ticket and the phone records to show all of the calls he had made in an effort to get back to his unit.  The lady asked him if he desired to get out of the Army or stay.  He told her that he wanted to stay and she told him that if he stayed he would be sentenced to 5 years.  He then told her that if he elected to get out he did not want his service characterized as dishonorable or under other that honorable conditions and she assured him that with all of the documentation that he provided his discharge would be characterized as general.

4.  The applicant further states that he grew up military and the military was his life.  When he enlisted, his parents separated; his father was stationed somewhere in Japan and his mother had no money to take care of his sister so, he was sending them 90 percent of his checks.  He did not want to get out of the Army, but also did not want to be imprisoned for 5 years.

5.  The applicant attests that he obtained a degree in criminal justice, but cannot get a job with a discharge under other than honorable conditions.  He states he needed his DD Form 214 (Certificate of Release or Discharge from Active Duty) when he applied for a job and contends that he was surprised to see a discharge under other than honorable conditions.  He'd thought that it was a general discharge the entire 4 years that he spent earning his degree and taking care of his children.  If he had taken his chances based upon all of the evidence, he could have retired from the military 2 years ago.

6.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army on 2 February 1992 and was awarded military occupational specialty 13F (Fire Support Specialist).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his separation he held the rank grade of private (PVT)/E-1.

3.  Item 44 (Time Lost Under Section 972, Title 10 United States Code and Subsequent to Normal Date of Expiration Term of Service) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was charged with 118 days of lost time attributed to being absent without leave (AWOL) and desertion.

4.  The applicant's duty status was changed from "Ordinary leave" to "AWOL" 28 July 1992 and he remained so absent until he surrendered to civilian authorities on 23 November 1972.

5.  A DD Form 458 (Charge Sheet) dated 2 December 1992 shows court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by departing his unit in an AWOL status on or about 28 July 1992 and remaining so absent until on or about 23 November 1992.

6.  The applicant 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 under other than honorable conditions discharge, and the procedures and rights available to him.

7.  On 2 December 1992, following counseling, the applicant submitted a voluntary written request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  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 an undesirable discharge.  He further acknowledged his understanding that, if his request for discharge was accepted, he could be discharged under other that honorable conditions and furnished an Other Than Honorable Discharge Certificate.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant declined his right to submit a statement in his own behalf.

8.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed that he be reduced to the lowest enlisted rank/grade and discharged under other than honorable conditions.

9.  On 18 January 1993, the applicant was discharged accordingly.

10.  His record is void of any evidence and he has not provided any evidence in support of his claim that he exercised due diligence in attempting to return to his unit in a timely fashion.  


11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, 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.  A discharge under other than honorable conditions would normally be given an individual who was discharged for the good of the Service. 

13.  Army Regulation 635-200, 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 contention that his discharge should be upgraded was carefully considered.

2.  His record is void of any evidence and he has not provided any evidence in support of his claim that he exercised due diligence in attempting to return to his unit in a timely fashion.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.
5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140000904





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ABCMR Record of Proceedings (cont)                                         AR20140000904



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