IN THE CASE OF:  	  

		BOARD DATE:  2 October 2014	  

		DOCKET NUMBER:  AR20140002788 


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:

* in his 11th year in the Army, his father became ill; he lost his leg and needed assistance
* since he was the only child and since his father was in and out of the hospital and needed help, it was left up to him to help
* he had to tend the cattle and upkeep the home and his father’s personal affairs prior to his death 
* he served his country faithfully for 11 years; he reenlisted on two separate occasions and prior to his third reenlistment, his father became ill
* he requested emergency leave to go home and he had approximately 2 months of accrued leave but his leave request was denied
* he was charged with being absent without leave (AWOL) and he was taken to Fort Hood, TX, then to Fort Sill, OK
* his discharge date came about in February “2002” (i.e., 1992) but he did not reenlist so he could go home and take care of his father
* he was an exemplary Soldier before his father fell ill   

3.  The applicant does not provide any 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 12 July 1983 and he held military occupational specialties 13N (Lance Crewmember) and 19E (M-60 Armor Crewman).  

3.  He reenlisted on 28 January 1987 and 3 July 1990.  He also served in Korea from November 1983 to November 1984 and Germany from September 1987 to around September 1991.  He held the rank/grade of sergeant/E-5.

4.  He was awarded or authorized the Army Service Ribbon, Army Achievement Medal (3rd Award), Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Good Conduct Medal (1st Award), Driver/Mechanic Badge-Wheel, National Defense Service Medal, Army Commendation Medal, Expert Marksmanship Qualification Badge with Grenade Bar, Marksman Marksmanship Qualification Badge with Pistol Bar, and Expert Marksmanship Qualification Badge with Rifle Bar. 

5.  On 3 September 1991, he departed his unit in an AWOL status and on 3 October 1991, he was dropped from the Army rolls as a deserter.  He was ultimately apprehended by civil authorities in Texas and returned to military control on 14 November 1991.  

6.  On 20 November 1991, court-martial charges were preferred against the applicant for one specification of AWOL from 3 September 1991 to 14 November 1991. 

7.  On 20 November 1991, 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 that were 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 acknowledged that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances and that he had no desire to perform further service
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he understood that if the 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 Department of Veterans Affairs
* he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he did not elect to submit a statement on his own behalf

8.  His immediate and intermediate commanders recommended approval with the issuance of an under other than honorable conditions discharge.  The immediate commander stated the applicant became disillusioned with the military. 

9.  On 23 January 1992, after a legal review for legal sufficiency and consistent with the chain of command recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10.  The separation authority directed an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  

10.  On 6 February 1992, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He completed 8 years, 4 months, and 3 days of creditable active and he had lost time from 3 September to 14 November 1991. 

11.  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. 

12.  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, an undesirable discharge was considered appropriate at the time.

	a.  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.

	b.  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 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.  Further, his discharge accurately reflects his overall record of service.

2.  Although the applicant executed an enlistment and two reenlistments, he held the rank/grade of SGT/E-5 at the time he went AWOL.  There is no evidence in his records and he provides none to show he addressed his father's illness with his chain of command or other support channels.  As a noncommissioned officer and a Soldier, he could have resorted to other legitimate avenues to tackle any personal problems at the time.  Additionally, his AWOL was terminated by civilian apprehension, not by his voluntary return to military control.  Finally, when presented with the court-martial charges and he consulted with counsel, he elected not to make a statement to explain his AWOL as he now does.  

3.  The evidence of record clearly shows he violated the UCMJ and then willingly elected the discharge instead of facing a court-martial.  

4.  Based on the applicant's extensive record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his service to either honorable or general.

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)                                         AR20140002788





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ABCMR Record of Proceedings (cont)                                         AR20140002788



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