IN THE CASE OF:	  

		BOARD DATE:	    20 January 2015

		DOCKET NUMBER:  AR20140008750 


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 dishonorable (i.e., under other than honorable conditions) discharge to a fully honorable discharge. 

2.  The applicant states he enlisted fresh out of high school and he had a very good first enlistment with no issues or disciplinary action.  He greatly enjoyed his military service and decided to reenlist.  During his second period of enlistment, he suffered from hardship and personal problems, and he made a mistake.  He asks that the Board not allow the mistake that he made as a young and inexperienced man affect him the rest of his life. 

3.  The applicant does not provide any evidence. 

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's records show he was born in November 1959 and enlisted in the Regular Army (RA) at 17 years and 8 months of age on 5 July 1977.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  He served in Germany from November 1977 to October 1980.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar and the Army of Occupation Medal. 

4.  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 4 July 1981.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years of active service. 

5.  He again enlisted in the RA at 22 years of age, in the rank/grade of SP4/E-4 on 18 November 1981.  He held MOS 76V (Materiel Storage and Handling Specialist).  He also served in Germany from November 1983 to February 1984.  

6.  He was awarded or authorized the Army Service Ribbon, Army of Occupation Medal, Army Good Conduct Medal, Overseas Service Ribbon, Noncommissioned (NCO) Officer Professional Development Ribbon, and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars. 

7.  On 25 February 1984, he departed his unit in an AWOL status and on 25 March 1984, he was dropped from Army rolls as a deserter.  He returned to military control on or about 25 April 1984.   

8.  On 1 May 1984, he again departed his unit in an AWOL status.  He returned to military control on 9 May 1984.   

9.  On 22 May 1984, court-martial charges were preferred against the applicant for one specification of being AWOL from 2 to 9 May 1984, one specification of failing to obey a lawful order from his NCO in charge to return to his unit, and one specification of failing to obey a lawful order from his commanding officer.

10.  On 23 May 1984, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if her request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him.  Following consultation with legal counsel, he 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 indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service
* he elected not to submit a statement on his own behalf

11.  On 30 May 1984, his immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.  The immediate commander stated: 

* he personally interviewed the applicant and he stated he was aware of the consequences of his actions
* he also stated he went AWOL because of personal problems (divorce and family illness)
* he went home but could not resolve the issues; twice he was ordered to return to his unit but he did not do so
* he ultimately surrendered in Jacksonville, FL and indicated his desire for a discharge 

12.  Consistent with the chain of command recommendation, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 5 November 1984, the applicant was discharged accordingly.

13.  The DD Form 214 the applicant was issued shows he was discharged for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form shows he completed 2 year, 9 months, and 10 days of creditable active service during the period under review and he had lost time from 25 February to 24 April and 1 to 8 May 1984. 

14.  There is no indication in his records he petitioned the Army Discharge Review Board for a review of his discharge action within that board's 15-year statute of limitations. 

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

	a.  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.

	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 record shows 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.


2.  The applicant was 22 years of age and he held the rank/grade of SP4/E-4 at the time of his second enlistment and he was nearly 24 years of age at the time he went AWOL.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20140008750



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ABCMR Record of Proceedings (cont)                                         AR20140008750



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