IN THE CASE OF:	  

		BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140003190 


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, in effect, that his under other than honorable conditions discharge be upgraded.  

2.  The applicant states he did not request the discharge.  He contends that after serving for 2 years, 11 months, and 13 days, he was given an administrative discharge against his will.  When he protested, his DD Form 214 (Certificate of Release or Discharge from Active Duty), was stamped "member not available to sign."  The request for discharge "for the good of the service" was fabricated because there is no record of the request.  He was given the opportunity to redeem himself and he did.  There is no way he would have requested a discharge "for the good of the service" with 2 years, 11 months, and 13 days of service completed of a 3-year enlistment.  

3.  The applicant provides a DD Form 214, discharge approval endorsement, and 
five DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ).  

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 24 September 1976.

3.  He accepted nonjudicial punishment (NJP) on:

	a.  20 January 1977, for failing to go at the time prescribed to his appointed place of duty;

	b.  18 April 1977, for wrongful possession of marijuana; and 

	c.  20 January 1978, for violating a lawful general regulation.

4.  On 11 October 1978, he was found guilty by a summary court-martial of being absent without leave (AWOL) during the period 3 April-25 September 1978.

5.  He accepted NJP on:

	a.  6 August 1979, for being AWOL during the period 11 December 1978 to 11 May 1979; 

	b.  9 December 1979, for disobeying a lawful command from his superior commissioned officer;

	c.  13 March 1980, for leaving his appointed place of duty without authority and for disobeying a lawful order from his superior commissioned officer;

	d.  10 April 1980, for four specifications of failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order from his superior noncommissioned officer, and for being AWOL during the period 4-7 April 1980; and

	e.  25 June 1980, for two specifications of failing to go at the time prescribed to his appointed place of duty.  

6.  A Transmittal of Court-Martial Charges shows that on 8 August 1980, court-martial-charges were preferred against the applicant.  A DD Form 458 (Charge Sheet) is not available.  However, the applicant's records show that he consulted with legal counsel and 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 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  His request for discharge shows he was charged with violation of the following UCMJ articles:

* Article 86 (AWOL)
* Article 89 (disrespect toward a superior commissioned officer)
* Article 90 (assaulting or willfully disobeying a superior commissioned officer)
* Article 95 (resistance, breach of arrest, and escape)
* Article 134 (general article)

7.  He acknowledged in his request that he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledged he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge(s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged he understood he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life because of a general discharge or any other less than honorable discharge.

8.  On 25 August 1980, the separation authority approved his request for discharge with a characterization of service of under other than honorable conditions.  On 29 August 1980, he was discharged accordingly.  

9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  Chapter 10 of that regulation provides 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 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.

	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's contention that his discharge should be upgraded because he did not voluntarily request the discharge has been carefully reviewed and found to be without merit.  

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  The evidence also shows that his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes NJP on eight occasions for being AWOL and other offenses, court-martial charges for a number of serious acts of misconduct, and many days of time lost.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  Based on the foregoing, there is no basis 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 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)                                         AR20140003190





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ABCMR Record of Proceedings (cont)                                         AR20140003190



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