IN THE CASE OF:	  

		BOARD DATE:	 20 November 2014 

		DOCKET NUMBER:  AR20140006708 


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 to honorable or general under honorable conditions.

2.  The applicant states:

* he enlisted under the Delayed Entry Program on 9 February 1983 and reported to active duty on 31 March 1983
* he successfully completed basic training and advanced individual training (AIT) at Fort Sill, OK
* his AIT was for military occupational specialty (MOS) 15D (Lance Missile Crewmember) and he was to be assigned to Battery C, 1st Battalion, 12th Field Artillery, Fort Sill, OK
* his MOS was changed to MOS 13M (Multiple Launch Rocket System Crewmember) and his assignment orders were changed to Headquarters and Headquarters Battery, 1st Battalion, 17th Field Artillery, Fort Sill, OK
* his MOS changed again to 94B (Food Service Specialist), an MOS he was not trained in or one he cared to hold since his interests were centered around the mechanical field
* he tried on numerous occasions to transfer into another MOS to no avail
* he later discovered his contract had a clause covering the needs of the Army and he was under the impression that he could easily have been transferred to a more suitable MOS should the need arise
* his request is not for monetary gains or other benefits that other honorably discharged service members receive

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 31 March 1983.

3.  Records show he was awarded the following MOS's:

* 15D – primary – effective 10 June 1983
* 94B – secondary – effective 22 March 1984

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) during the following periods:

* 5 November through 11 November 1984
* 16 November through 11 December 1984
* 13 December 1984 through 14 January 1985

5.  On 18 January 1985, charges were preferred against the applicant for being AWOL on or about:

* 5 November until 12 November 1984
* 16 November until 12 December 1984
* 13 December 1984 until 15 January 1985


6.  On 18 January 1985, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge; the effects of requesting discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and the rights available to him.

7.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged his guilt and that:

* he understood he could be discharged under other than honorable conditions 
* as a result of such a discharge, he would be deprived of many or all Army benefits and he would 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 Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge
* he did not elect to submit a statement in his own behalf

8.  On 31 January 1985, the separation authority approved the applicant's request and directed the characterization of his service as under other than honorable conditions and reduction to private/E-1.

9.  On 22 February 1985, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 8 months, and 17 days of active service and accrued 66 days of lost time.

10.  There is no indication the applicant 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.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions was carefully considered.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the Uniform Code of Military Justice.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and there is no documentary evidence of mitigating circumstances that would warrant changing the character of his service.  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)                                         AR20140006708



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ABCMR Record of Proceedings (cont)                                         AR20140006708



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