IN THE CASE OF:	   

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140008689 


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 a fully honorable discharge, that his rank be reinstated, and that he be paid all back pay and allowances for the remainder of his enlistment.

2.  The applicant states, in effect, that he was not absent without leave (AWOL); however, after he was accosted by a “gay” sergeant he wrote up a statement to turn him in.  The next day, the sergeant and two other Soldiers threatened his life if he turned the sergeant in and proceeded to cut him with a knife.  He was scared and went to Fort Sill, Oklahoma where he told a female lieutenant colonel what happened and she asked him if he wanted to stay in the Army.  He responded that he did but not at Fort Lewis.  She responded that she was not in the assignment business.  She had him sign some papers; however, at the time he did not know they were discharge papers.  He went to Texas to await a new duty assignment but instead received a discharge under other than honorable conditions.

3.  The applicant provides no additional documents with his application.

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.  After serving in the U.S. Army Reserve as an infantryman from 1987 to 1994, the applicant enlisted in the Regular Army on 1 November 1995 and was transferred to Fort Lewis, Washington for his first duty assignment.  

3.  On 21 October 1996, he went AWOL and remained absent in desertion until he was returned to military control at Fort Sill, Oklahoma on 11 December 1996, where charges were preferred against him on 12 December 1996.

4.  On 12 December 1996, after consulting with defense counsel, the applicant submitted a request for 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 he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his behalf.  He also declined a physical examination.

5.  The applicant’s commander indicated that the applicant went AWOL for personal reasons and that he had become disillusioned by the military.

6.  On 3 February 1997, the appropriate authority approved his request and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10, and furnished a discharge under other than honorable conditions. 

7.  On 18 February 1997, he was discharged accordingly.  He completed 1 year, 1 month, and 27 days of total active service and had 51 days of lost time due to AWOL.

8.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be given an individual who was discharged for the good of the Service.

	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'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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted and not only are they not supported by the evidence of record, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence during such a short period of service.  His service simply did not rise to the level of under honorable conditions.

4.  Additionally, he has provided no evidence to show that he did not go AWOL or that he was not properly reduced to the lowest enlisted grade at the time of discharge.

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge, removing his AWOL time, or changing his pay grade.

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)                                         AR20140008689





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ABCMR Record of Proceedings (cont)                                         AR20140008689



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