IN THE CASE OF: 

		BOARD DATE: 26 August 2014

		DOCKET NUMBER:  AR20140001126 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to general or honorable.

2.  The applicant states he was 18 years old when he enlisted in the Regular Army (RA), he served in Germany, qualified as an expert with the M-16 rifle, and earned the Army Service Ribbon and the Overseas Service Ribbon.  He provides a chronological record of events the led to his discharge showing that while assigned in Germany, he made efforts to get a compassionate reassignment to the Presidio of San Francisco, California to be with his family.  In January 1983, he was finally reassigned to San Francisco, but in April 1983 he was called into his commanding officer's office and told he was being discharged.  He assumed he was getting an early-out with an honorable discharge since he had only 6 months left on his enlistment contract.  When he was in the Army he served with honor.  His only fault was he didn't serve out his enlistment.

3.  The applicant provides copies of his:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 21 October 2012
* County of Alameda Birth Certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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, and 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 RA on 4 May 1977.  He held military occupational specialty 64C (Motor Transport Operator).  

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he served in Germany from 29 August 1977 through 28 April 1980 and from 27 December 1981 through 16 August 1982.  The highest rank he attained was private first class (PFC)/E-3.  Item 21 (Time Lost) shows 215 days of time lost from 16 August 1982 through 19 April 1983.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Conduct (UCMJ) on 3 April 1980 for sleeping on his post as sentinel and failing to obey a lawful order. 

5.  On 2 May 1983, charges were preferred against the applicant for absence without leave (AWOL) from 16 August 1982 to 20 April 1983.

6.  On 3 May 1983, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge under conditions other than honorable, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he would not submit a statement on his own behalf.
7.  The separation authority approved the discharge request on 16 May 1983 and directed issuance of a UOTHC Discharge Certificate.

8.  On 21 May 1983, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.
He had completed 5 years, 4 months, and 21 of active duty.  Time lost is shown as from 16 August 1982 to 19 April 1983 (8 months and 14 days).

9.  On 24 February 1997, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.

10.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

	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 has provided no evidence to substantiate his version of the facts.  His record shows his unit in Germany reported him AWOL on 16 August 1982 and he remained in an AWOL status until 19 April 1983.  This offense is punishable under the UCMJ through trial by court-martial. 

2.  His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to honorable or general under honorable conditions.

3.  In view of the foregoing, his request should be denied.

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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20140001126



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