IN THE CASE OF:	

		BOARD DATE:	    2 December 2014

		DOCKET NUMBER:  AR20140006286 


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 at least a general discharge.

2.  The applicant states he has served the punishment of his discharge and believes it has served its purpose.  His discharge has been a black mark on his record and affects his career.  Accordingly, he desires it to be upgraded so he can get on with his life.

3.  The applicant provides a copy of his DD Form 214.

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 17 January 1980 for a period of 3 years, training as a combat engineer, and assignment to Europe.  He was transferred to Fort Leonard Wood, Missouri to undergo his one-station unit training.

3.  On 3 April 1980, nonjudicial punishment was imposed against him for failure to go to his place of duty.

4.  He completed his training and received orders transferring him to Germany; however, it does not appear that he reported as ordered and was reported as being absent without leave (AWOL) during the period 800503 – 800609.

5.  The facts and circumstances surrounding his administrative discharge are not present in the available records because they were loaned to the Department of Veterans Affairs in Pittsburgh, Pennsylvania in 1994.  However, his records do show that he was discharged under other than honorable conditions on             11 September 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 months and 18 days of active service and had 37 days of bad time due to AWOL. 

6.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  Army Regulation 635-200 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 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.

8.  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.


DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that 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 violations of any of the applicant’s rights.  It is presumed that, after being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge.  In doing so he would have admitted guilt to the charges against him.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  The applicant's contentions and supporting documents have been noted and they are not sufficiently mitigating to warrant relief under the circumstances.  Given his undistinguished record of service, the length of his absence and absence of mitigating circumstances, his service simply does not rise to the level of 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)                                         AR20140006286





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006286



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1