IN THE CASE OF:	  

		BOARD DATE:	  21 October 2014

		DOCKET NUMBER:  AR20140005953 


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 a change to his character of discharge.

2.  The applicant states he previously received nonjudicial punishment for his absence without leave (AWOL) offenses under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), he was unaware what type of discharge he was to receive, and he was not present to sign his discharge.

3.  The applicant provides excerpts from his DA Form 2-1 (Personnel Qualification Record). 

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 2 September 1992.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 92G (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  He was AWOL during the following periods:

* 7 March 1995 through 21 March 1995
* 7 April 1995 through 3 May 1995
* 1 July 1995 through 6 February 1996

4.  Charges were preferred against him, on 9 February 1996, for being AWOL for the period 1 July 1995 through 7 February 1996.

5.  On 9 February 1996, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he understood that by requesting discharge 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws

7.  On 1 March 1996, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of an under other than honorable conditions discharge.

8.  On 23 April 1996, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 11 months, and 4 days of total creditable active military service, with 263 days of lost time due to being AWOL.

9.  On 13 December 2002, the Army Discharge Review Board denied his request for an upgrade of his discharge.

10.  On 9 December 2005, the Army Discharge Review Board denied his subsequent appeal for an upgrade of his discharge.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, 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.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation from the Army with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the Soldier’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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his character of discharge should be changed was carefully considered; however, it was found to have insufficient evidence to support.

2.  His record reflects 3 separate periods of AWOL amounting to 263 days of lost time.

3.  His record also shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial, which may have resulted in a felony conviction.

4.  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.

5.  He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  Subsequent to receiving legal counsel, he voluntarily requested 
discharge for the good of the service in lieu of trial by court-martial.  It is not a requirement that he be present to sign the discharge document.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.    This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to the relief requested.

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)                                         AR20140005953





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ABCMR Record of Proceedings (cont)                                         AR20140005953



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