IN THE CASE OF:	  

		BOARD DATE:	  4 February 2015

		DOCKET NUMBER:  AR20140009908 


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.

2.  The applicant states he was on leave because of the death of his wife's family in Germany.  He went on leave and signed in at a post in Wurzburg.  His father then died and he went to Jamaica.  They then held him and took him to Fort Dix, NJ, and told him he would be discharged.  He was also told he would be able to get back his honorable discharge in 6 months.  He had loved the Army and wanted to make it a career. 

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.  The applicant's records show he enlisted in the Regular Army on 9 April 1979 and held military occupational specialty 31K (Combat Signaler).  He served through multiple reenlistments in a variety of stateside and/or overseas assignments. 

3.  He was promoted through the ranks to sergeant/E-5 on 1 November 1984.  He completed two tours in Germany from July 1979 to October 1981 and July 1983 to June 1986.

4.  He was awarded or authorized the Army Service Ribbon, Army Achievement Medal, Noncommissioned Officer Professional Development Ribbon, Overseas Service Ribbon (2nd Award), Army Good Conduct Medal, Expert Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade bar. 

5.  On 15 October 1987, he departed his Fort Polk, LA, unit in an absent without leave (AWOL) status and on 15 November 1987, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities at JFK International Airport in New York and returned to military control on 6 June 1991. 

6.  It appears following his apprehension and return to military control court-martial charges were preferred against him.  The complete facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, his record contains:

	a.  Orders 249-80 issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, on 6 September 1991, reducing him from sergeant/E-5 to private/E-1 on 30 July 1991 and reassigning him to the U.S. Army Transition Point, Fort Dix, for the purpose of outprocessing, and subsequent discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the Army in lieu of trial by court-martial, effective 19 September 1991.

	b.  A memorandum, dated 19 September 1991, signed by the Commander of the U.S. Army Transition Centers, Fort Dix, NJ, advising him that he would be separated from the Army on 19 September 1991 in accordance with chapter 10 of Army Regulation 635-200 and providing him with his separation documents. 

	c.  A letter of Debarment, issued on 23 September 1991, informing him that, having been discharged from the Army on 19 September 1991, under the provisions of Army Regulation 635-200 with an under other than honorable conditions discharge issued at Fort Dix he is prohibited from reentering Fort Dix. 

	d.  A DD Form 214 that shows he was discharged, on 19 September 1991, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  This form also shows he completed 8 years, 9 months, and 1 day of creditable active service and he had lost time from 15 October 1987 to 5 June 1991. 

7.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

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

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 is void of the facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged under other than honorable conditions on 19 September 1991 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  There is no evidence in his records and he provides none to show he encountered a death in the family or that he addressed this issue with his chain of command or other supporting channels.  In any case, there would have been many other legitimate avenues to address those issues had the applicant elected to use them. 

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  The Army does not now have nor did it ever have a policy wherein a characterization of service is upgraded due to the passage of time. 

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)                                         AR20140009908





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ABCMR Record of Proceedings (cont)                                         AR20140009908



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