IN THE CASE OF:	   

		BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140004156 


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 that his discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states he went absent without leave (AWOL) because his son was born.

3.  The applicant provides no additional documents with 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.  The applicant enlisted in the Regular Army on 27 February 1995 for a period of 3 years and training as an armor crewman.  He was single at the time of his enlistment and he completed his one-station training at Fort Knox, Kentucky before being transferred to Korea on 19 June 1995.

3.  The applicant was pending charges on false swearing, larceny, and forgery when he went AWOL on 29 November 1995 and remained absent in desertion until he was apprehended by civil authorities in Duncanville, Texas on               13 August 1996 and was returned to military control at Fort Sill, Oklahoma.

4.  He again departed AWOL on 22 August 1996 and remained absent in desertion until he was apprehended by civil authorities in Dallas, Texas on        20 January 1997 and was returned to military control at Fort Sill, Oklahoma.

5.  On 24 January 1997, he again departed AWOL and remained absent in desertion until he was apprehended by civil authorities in Kingman, Arizona on   10 October 1997 and was again returned to military control at Fort Sill, Oklahoma.

6.  Charges were preferred against the applicant for the three periods of AWOL on 15 October 1997.

7.  On 20 October 1997, after consulting with defense counsel, the applicant submitted a request for 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.  

	a.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  

	b.  He admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  

	c.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  

	d.  He elected not to submit a statement in his own behalf.

8.  On 20 January 1998, the appropriate authority approved his request for discharge and directed he be given an under other than honorable conditions discharge. 

9.  On 6 February 1998, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 1 year, 1 month, and 2 days of creditable active service with 577 days of time lost due to AWOL.

10.  There is no evidence in the available records that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

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

	a.  Chapter 10 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 voluntary request for separation 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 regulations with no indication of any violations of his rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  His contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the extensive length of his absences and his otherwise undistinguished record of service.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting him an honorable or a general discharge.

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)                                         AR20140004156





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ABCMR Record of Proceedings (cont)                                         AR20140004156



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