BOARD DATE:  30 October 2014

		DOCKET NUMBER:  AR20140005057 


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.

2.  The applicant states:

* he now knows the importance of his wrongdoing
* he was young when he was in the Army
* in many ways he wishes he had stayed in the Army

3.  The applicant provides no additional evidence.

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 was born in February 1957.  After having prior honorable service, he enlisted in the Regular Army at 23 years of age on 23 January 1981.

3.  On 23 December 1982, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* dereliction of duty on three occasions on or about 9 December 1982
* failure to go to his appointed place of duty on or about 11 December 1982

4.  His military records show his duty status changes as follows:

* 9 February 1983 – confined by civil authorities to absent without leave (AWOL)
* 11 March 1983 – AWOL to dropped from the unit rolls
* 29 April 1983 – dropped from the unit rolls to present for duty

5.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was AWOL from 9 February 1983 through 28 April 1983.

6.  On 4 May 1983, charges were preferred against the applicant for being AWOL on or about 9 February 1983 until on or about 29 April 1983.

7.  On 10 May 1983, the applicant 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.  Following consultation with legal counsel, he voluntarily submitted a request for 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.  In his request for discharge, he acknowledged:

* he was guilty of the charge against him
* he could be discharged under other than honorable conditions if his request were approved
* he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration
* 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

8.  On 26 August 1983, the separation authority approved his request for discharge, directed the issuance of a discharge under other than honorable conditions, and directed his reduction to private/E-1.

9.  On 3 October 1983, he was discharged as directed.  He completed 2 years, 5 months, and 21 days of net active service during this period and accrued 79 days of lost time.

10.  There is no evidence to indicate 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.  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 request for an upgrade of his discharge under other than honorable conditions was carefully considered.

2.  He was almost 25 years of age at the time of his indiscipline.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He was charged with being AWOL, an offense for which he could have been found guilty in a trial by court-martial and issued a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

4.  When court-martial charges were preferred against him for being AWOL, he voluntarily chose to be discharged instead of facing the charges.  His records show he was well advised and fully aware of the consequences of his decision.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances that would warrant upgrading his discharge.  Therefore, he is not entitled to 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 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)                                         AR20140005057



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