IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140004892 


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 characterization of service.

2.  The applicant states his stepfather was involved in a catastrophic motor vehicle accident that left him paralyzed.  His mother was left to take care of him and run the family business on her own.  He fruitlessly pursued various personnel actions in the hopes of being able to assist his family by requesting a permanent change of station to a hardship discharge.  Nothing he tried worked and at the time he felt that going absent without leave (AWOL) was his only alternative.  He was AWOL from 6 July to 24 October 1981.  When he returned home his stepfather was in a coma and he was thrust into the role of attempting to run the family business with his brother on his mother's behalf.  His family needed his help in dealing with this tragedy.  

3.  The applicant provides a DA Form 2496 (Disposition Form) dated 
4 November 1981 and five letters of support/recommendation/character references.

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 28 May 1980 and held military occupational specialty 11B (Infantryman).

3.  His record contains a DA Form 3535 (Notice of Unauthorized Absence from United States Army), dated on or around 14 July 1981.  This form shows he departed AWOL on 6 July 1981 and stated "… [the applicant's] father was unable to work.

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was AWOL from 6 July to 23 October 1981.

5.  His record contains a statement of option, dated 28 October 1981, wherein the applicant indicated he did not desire a separation medical examination.

6.  His record contains a DA Form 2491-1 (Disposition Form) which shows he had a mental status evaluation on 29 October 1981 and was psychiatrically cleared for administrative action deemed appropriate by his commander. 

7.  His record contains a DA Form 458 (Charge Sheet), dated 2 November 1981, showing court-martial charges were preferred against him for being AWOL from on or about 6 July 1981 to 24 October 1981. 

8.  On 4 November 1981, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he 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.  

9.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 6 November 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to private/E-1.  

11.  On 30 November 1981, he was discharged accordingly.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  He completed 1 year, 2 months, and 15 days of creditable active service with 
110 days of lost time.

12.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

	a.  Paragraph 3-7a states 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.

	b.  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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Aside from the comment that his father was unable to work listed on his 
DA Form 3535, there is no evidence mentioning his stepfather, and no indication that his chain of command was aware of the severity of his family situation.  

3.  His record contains 110 days of lost time due to being AWOL.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  

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

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)                                         AR20140004892



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004892



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1