BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140003662 


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 his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was absent without leave (AWOL) because his wife was unfaithful to him.  He was on leave and was not aware he was AWOL until he thought his leave was complete.

3.  The applicant provides no additional evidence in support of his application. 

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.  On 16 July 1976, he enlisted in the Regular Army.  He was promoted to specialist four/pay grade E-4 on 1 April 1978.  On 15 January 1979, he was discharged to immediately reenlist.  He completed 2 years and 6 months of active service that was characterized as honorable.

3.  On 16 January 1979, he immediately reenlisted for 4 years.  On 16 August 1979, he was assigned to the 42nd Field Hospital at Fort Knox, KY.  

4.  He received nonjudicial punishment (NJP) on:

* 20 November 1979 for being AWOL from 7 - 9 November 1979
* 20 August 1980 for being AWOL from 17  - 28 July 1980 and from 31 July - 1 August 1980

5.  On 6 January 1983, the applicant signed a statement admitting he was AWOL from 7 May 1982 to 4 January 1983 for administrative purposes.

	a.  After being advised by his defense counsel that the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial, he knowingly, willingly, and voluntarily declared that he was AWOL from the U.S. Army from 7 May 1982 to 4 January 1983.

	b.  He made the above admission for administrative purposes only so he could process out of the Army and realized in doing so he may be given an other than honorable discharge.

	c.  He declared his military defense counsel had explained to him all the legal and social ramifications of receiving an under other than honorable conditions discharge and what it would mean to him in the future.

	d.  He further declared that the agreement only pertained to his AWOL and the Army could (any time prior to his discharge) prefer charges for any other military crimes that may be pending against him.

6.  There was no charge sheet available charging him with being AWOL from 
7 May 1982 to 4 January 1983.

7.  On 11 January 1983, due to charges having been preferred against him for being AWOL from 7 May 1982 to 4 January 1983, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  Only page 1 of his request for discharge was available for review.  He acknowledged he understood the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making the request
* advised he might be furnished an Under Other Than Honorable Conditions Discharge Certificate

8.  His commander and intermediate commander recommended his request for discharge be approved and that he receive an under other than honorable conditions discharge.

9.  On 25 January 1983, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial, directed his reduction to private/pay grade E-1, and the issuance of an under other than honorable conditions discharge.

10.  On 17 February 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 3 years, 3 months, and 23 days of net active service this period that was characterized as under other than honorable conditions.  He had 277 days of time lost.  

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 11 February 1988, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.
	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was AWOL because his wife was unfaithful to him.  His wife's infidelity is not considered a valid reason for going AWOL.  At the time of his AWOL he had over 5 years of active Army service.  As such, he should have been aware of avenues that he could have pursued in resolving his personal issues in lieu of going AWOL.  

2.  He contends he was on leave and didn't know he was AWOL until he thought his leave was up.  It is not clear how a Soldier with over 5 years of service could have thought he could have been on leave for over 7 months.

3.  His multiple periods of AWOL show he had not met the standards of acceptable conduct and performance of duty for Army personnel.  His 277 days of time lost shows his second period of service to be unsatisfactory.

4.  He was charged with an offense punishable by a punitive discharge.  He consulted with counsel, voluntarily admitted guilt to the offense or lesser offenses included, and requested discharge in lieu of court-martial.  He acknowledged in his request for discharge that he could receive an under other than honorable conditions discharge.  Therefore, his request for discharge was administratively correct and in conformance with applicable regulations.

5.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

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)                                         AR20140003662



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ABCMR Record of Proceedings (cont)                                         AR20140003662



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