BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140010438 


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 very young and the Soldiers in charge were pushing everyone through the process very fast.  He was told he would be prosecuted and he would receive a court-martial if he did not take the deal offered to him.  He further states he would like to appear before the Board near his home. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored statement
* 2 letters of support
* DD Form 4/1/2/3/4 (Enlistment/Reenlistment Document -  Armed Forces of the United States)
* 2 DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* DD Form 458 (Charge Sheet)
* DA Form 2A (Personnel Qualification Record, Part I)
* DA Form 2-1 (Personnel Qualification Record, Part II)
* DA Form 2442 (Certificate of Achievement)
* a letter from the National Personnel Records Center


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 was born on 28 January 1961.  He enlisted in the Regular Army on 30 July 1980, successfully completed training, and he was awarded military occupational specialty 31L (Wire Systems Installer).

3.  His records contain a Characterization of Service Checklist for Administrative Discharge Actions which indicates that he twice received disciplinary action under Article 15, UCMJ.  This form also shows the applicant was absent without leave (AWOL) for the period 6 to 23 January 1982 and that he was reduced in rank/grade from specialist four/E-4 to private first class/E-3 on 4 February 1982.

4.  On 1 April 1988, court-martial charges were preferred against the applicant for one specification of absenting himself from his organization (Headquarters and Headquarters Company, 35th Signal Brigade, Fort Bragg, NC), from 16 February 1982 to 29 March 1988.

5.  On 5 April 1988, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  

6.  In his request for discharge, he acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He acknowledged he understood if his discharge request were approved, he may be deprived of many or all Army benefits.  He acknowledged he may be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to make a statement on his own behalf.

7.  On 12 April 1988, his immediate commander recommended approval of his request with the issuance of a discharge under other than honorable conditions.

8.  On 15 April 1988, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 27 May 1988, he was discharged accordingly.

9.  His DD Form 214 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.  He completed 1 year, 7 months, and 27 days of creditable active service and he had lost time from 6 to 23 January 1982 and from              16 February 1982 to 28 March 1988.

10.  The applicant provides two letters of support which attest to his service in the Junior Reserve Officers’ Training Corps and his excellent pre and post-service character.

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  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 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.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants may be represented by counsel at their own expense. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

2.  The applicant's contention that his under other than honorable conditions discharge should be upgraded was carefully considered and determined to lack merit.

3.  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.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.
5.  The applicant's record of service shows he was AWOL from his organization from 6 to 23 January 1982 and from 16 February 1982 to 28 March 1988.    Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.

6.  Records show the applicant was nearly 21 years of age at the time of his first AWOL offense.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  

7.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20140010438





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ABCMR Record of Proceedings (cont)                                         AR20140010438



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