BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140010215 


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 an honorable discharge.

2.  The applicant states that he was offered an early discharge while not fully understanding the full affect of the conditions that were assigned.  He did nothing to be given less than an honorable discharge.

3.  The applicant provides three third-party statements.

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 27 June 1984 for a period of    3 years and training as an Abrams Armor Crewman.  He completed his one-station unit training at Fort Knox, Kentucky and was transferred to Germany on 30 October 1984.  He was advanced to the pay grade of E-4 on 1 January 1986.  He completed his 18-month tour and was transferred to Fort Bliss, Texas on 
21 May 1986.

3.  On 6 February 1987, the applicant reenlisted for a period of 5 years and a selected reenlistment bonus.

4.  On 7 July 1987, the applicant commander notified him that he was initiating action to bar him from reenlistment.  He cited as the basis for his recommendation three specifications of writing bad checks, failure to pay just debts, and failure to respond to counseling sessions for disorderly conduct, four specifications of failure to go to his place of duty, failure to follow instructions, and lack of motivation.

5.  The applicant elected not to submit a statement in his own behalf and the appropriate commander approved the bar to reenlistment on 3 August 1967.

6.  The applicant went absent without leave (AWOL) from 25 August to                3 September 1987 and was confined by military authorities for 1 day after his return.  The record is silent as to the punishment imposed for that offense; however, his records show that he was reduced to the pay grade of E-1 on       23 September 1987.

7.  On 15 December 1987, charges were preferred against the applicant for stealing a Motorola portable cellular telephone, property of a value of $2,200.00, property of Metro Mobile Cellular Telephone Service of El Paso leased to the U.S. Army and of intent to defraud by using said phone by representing himself as an authorized user.

8.  On 6 January 1988, 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. 

9.  His company commander indicated that the applicant’s continued pattern of misconduct to include larceny, disobeying lawful orders, and record of nonjudicial punishment did not warrant a general or honorable discharge.  He also indicated that he had initiated actions for an administrative discharge when the applicant committed the offense of larceny and he preferred court-martial charges against him.  He recommended approval of the applicant’s request.

10.  The battalion and brigade commanders both recommended approval of the applicant’s request and recommended a discharge under other than honorable conditions.

11.  On 21 January 1988, the appropriate authority (a major general) 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. 

12.  On 8 February 1988, he was discharged accordingly.  He completed 3 years, 7 months, and 1 day of total active service and had 10 days of lost time due to AWOL and confinement.

13.  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.

14.  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 Veterans Administration 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 and supporting documents 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 serious nature of the charges against him and his otherwise undistinguished record of service.  His service simply did not rise to the level of under honorable conditions.

4.  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)                                         AR20140010215





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ABCMR Record of Proceedings (cont)                                         AR20140010215



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