IN THE CASE OF:  	  

		BOARD DATE:  4 November 2014	  

		DOCKET NUMBER:  AR20140004774 


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 fully honorable discharge.

2.  The applicant states, in effect, that while going on leave he gave a friend a ride from Fort Campbell, Kentucky to Cleveland, Ohio and was unaware that his friend was involved in a crime.  When he found out he turned himself in to the Federal Bureau of Investigation (FBI).  He informed his commander that he had to appear in court and every time he did so he was reported as being absent without leave (AWOL).  He was found guilty of aiding, abetting, and embezzlement. 

3.  The applicant provides a two-page statement explaining his application, DD Form 214 (Certificate of Release or Discharge from Active Duty), enlistment contract, and DA Form 2-1 (Personnel Qualification Record – Part II).

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 14 September 1979 for a period of 3 years, training as an infantryman, and assignment to Korea.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Korea for his first assignment.  Nonjudicial punishment (NJP) was imposed against him in October 1980 for multiple failures to go to his place of duty.

3.  He completed his assignment to Korea and was transferred to Fort Campbell, Kentucky on 25 January 1981.

4.  On 3 April 1981, NJP was imposed against him for being absent without leave (AWOL) from 5 March to 7 March 1981.

5.  On 27 October 1981, NJP was imposed against him for being AWOL from     2 October to 6 October 1981.

6.  His records also show that he was confined by civil authorities from 10 April  to 11 August 1981, he was AWOL during the period 13 October to 
15 October 1981, he was confined by civil authorities during the period 
31 October to 10 November 1981, and was AWOL during the period 1 December to 17 December 1981. 

7.  On 26 February 1982, charges were preferred against the applicant for being AWOL during the period 18 December 1981 to 24 February 1982.

8.  On 1 March 1982, the applicant submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In his request he stated that charges had been preferred against him which authorized the imposition of a bad conduct or dishonorable discharge. 

   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.

9.  On 23 March 1982, the appropriate authority (a brigadier general) approved his request for discharge and directed the issuance of an under other than honorable conditions discharge certificate. 

10.  On 7 May 1982, 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 2 years and 10 days of creditable active service.  He had 231 days of lost time due to AWOL and confinement by civil authorities.

11.  There is no evidence in the available records which shows that he applied to the Army Discharge Review Board (ADRB) 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 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 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 given the serious and repeated nature of his offenses, 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)                                         AR20140004774





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004774



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1