IN THE CASE OF: 

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140008427


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, his discharge should be upgraded.  He states he went to basic training at Fort Benning, Georgia and served in Germany for two years before he was absent without leave (AWOL).  He contends he was a young boy at the time.  

3.  The applicant provides no additional evidence in support of his request.

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 12 June 1980 at the age of 18. He completed training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 16 November 1981, before a summary court-martial at Fort Sill, Oklahoma, he was convicted of a single specification of Charge I for violating Article 86 of the Uniform Code of Military Justice (UCMJ); specifically, for being AWOL from on or about 21 June 1981 to on or about 27 October 1981.  

4.  On or about 10 February 1982, he was reported as AWOL from his unit, Company A, 2d Battalion, 19th Infantry Regiment, Fort Stewart, Georgia.  On or about 28 June 1983, he was apprehended by civilian authorities and returned to military control at Fort Stewart, Georgia.  

5.  On 30 June 1983, charges were preferred against him under Article 86 of the UCMJ for being AWOL during the period 10 February 1982 to 28 June 1983. 

6.  On 1 July 1983, he consulted with legal counsel and 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.  In his request for discharge, he acknowledged:

   a.  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 dishonorable discharge.  

   b.  He 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 of the procedures and rights that were available to him.  
   
   c.  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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  
   
   d.  He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements.
   
7.  On 28 July 1983, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 10 August 1983, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he completed 1 year, 5 months, and 3 days of total active service.  His DD Form   214 also indicates additional time lost from 5 January 1982 to 6 January 1982. 

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

9.  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.

10.  Army Regulation 635-200, 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.

11.  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.  The applicant's request for upgrade of his under other than honorable conditions discharge has been carefully considered; however, there is insufficient evidence to support his request.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.


3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  He contends his youth was a factor in the misconduct that led to his discharge and his discharge should be upgraded because he was young and foolish at the time of his service.  Records show he was 19 years of age at the time he first went AWOL.  However, despite his age, there is no evidence his youth was a mitigating factor in his misconduct, or that he was any less mature than other Soldiers of the same age who successfully completed their military service.

5.  Based on the foregoing, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable 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 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)                                         AR20100014558



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008427



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1