IN THE CASE OF:	  

		BOARD DATE:	 22 January 2015 

		DOCKET NUMBER:  AR20140008506


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 an honorable discharge.

2.  The applicant states he was scheduled for a compassionate assignment to Barksdale Air Force Base (AFB), LA; however, he was sent to Fort Polk, LA where he was told that he would be reduced in rank.  His grandfather was dying and he was having his own medical issues which made his reassignment vital.  He is currently having health issues directly related to his military service and he needs Department of Veterans Affairs (VA) medical coverage.

3.  The applicant provides his 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.  On 27 January 1987, he enlisted in the Regular Army.  He served overseas in Germany and his final assignment was at Fort Sill, OK.

3.  On 21 December 1990, he was charged with being absent without leave (AWOL) from 7 August to 13 December 1990 (129 days) while assigned to Fort Sill, OK.

4.  On the same day, he consulted with counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

5.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He stated he understood he could request discharge for the good of the service because of charges having been preferred against him under the UCMJ, at least one of which authorized the imposition of a bad conduct or dishonorable discharge.

6.  In his request for discharge he further acknowledged:

* he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood that as a result of his request he could be discharged under other than honorable conditions
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge
* he understood that there was no automatic upgrading or review of an other than honorable conditions discharge and that he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his discharge

7.  He elected not to submit statements in his own behalf.

8.  On 14 February 1991, the separation authority approved his request for discharge, directed that he be discharged under other than honorable conditions, and directed that he be reduced to private/E-1.  On 6 March 1991, he was discharged as directed.

9.  The applicant's record is void of a request for a compassionate assignment to Barksdale AFB, LA or an approval of such request.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	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 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 requests upgrade of his discharge to honorable.

2.  There is no indication in the available record that the applicant was ever placed on a compassionate reassignment to Barksdale AFB, LA and then diverted to Fort Polk, LA.   As such, his contention that his misconduct was based on being improperly reassigned to Fort Polk, LA cannot be substantiated.

3.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  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 UCMJ.  He voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

4.  Based on his lengthy absence, his service 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 characterization 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 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)                                         AR20140002099



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ABCMR Record of Proceedings (cont)                                         AR20140008506



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