IN THE CASE OF:  

		BOARD DATE:  30 October 2014

		DOCKET NUMBER:  AR20140004292 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states:

* he was on excess leave at the time
* his mother was diagnosed with ovarian cancer
* he was 21 years of age and he was trying to make sure she was medically cared for
* he was on leave from Korea
* he reported to a base in Alabama and was immediately arrested and was charged with being absent without leave (AWOL)
* the people at Fort McClellan did not know him or care about his situation
* he was under stress and signed whatever he was told to sign to exit the military
* he was wrong for handling the situation the way he did, but it was due to forces outside of his control
* he served faithfully up until his mother's terminal illness and he deserves an honorable discharge
* he has been homeless for a number of years and he has no supporting documents

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 June 1992.

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.  After having prior honorable service in the Army National Guard, the applicant enlisted in the Regular Army on 15 November 1988.

3.  On 27 December 1989, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for having a guest in his room who was not signed in and past visitation hours.

4.  His DA Form 2-1 (Personnel Qualification Record) shows in:

* item 5 (Oversea Service) – Korea from 29 November 1990 through 9 April 1991
* item 21 (Time Lost) – 10 April 1991 through 9 May 1992

5.  His records show his duty status changes as follows:

* 10 April 1991 – from emergency leave to AWOL
* 11 May 1991 – from AWOL to dropped from the rolls
* 10 May 1992 – from apprehended by military authorities to attached/
present for duty

6.  On 20 May 1992, charges were preferred against him for being AWOL from on or about 10 April 1991 until on or about 10 May 1992.

7.  On 20 May 1992, the applicant voluntarily and in writing requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He consulted with legal counsel who advised him 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 UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  He acknowledged:

* he was guilty of the charge against him or a lesser-included offense
* he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions

8.  He indicated he submitted statement(s) in his behalf with his request for discharge; however, his military records do not contain any such statements.

9.  On 1 June 1992, the separation authority approved his request for discharge and directed his reduction to private/E-1 and characterization of his service as under other than honorable conditions.

10.  On 23 June 1992, 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 2 years, 6 months, and 9 days of creditable active service during this period and accrued 396 days of lost time.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade 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.

	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.  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 states 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 records show he was AWOL from 10 April 1991 through 9 May 1992.  Upon his return to military control, he voluntarily and writing requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

2.  In so doing, he declined the opportunity to present evidence of mitigating circumstances for consideration by a court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.

3.  Based on the evidence of record, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and there is no documentary evidence of mitigating circumstances that would warrant upgrading his discharge to honorable or general under honorable conditions.

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)                                         AR20140003516



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ABCMR Record of Proceedings (cont)                                         AR20140004292



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