IN THE CASE OF:	   

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140010611 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states:

* he was told his discharge would be upgraded after 1 year if he kept a good record
* he has medical treatment records supporting a disability
* he was absent without leave (AWOL) because members of his platoon wanted him and another Soldier to kill Sergeant F____ and he had a nervous breakdown
* he was given the option to break the law or be killed
* he was asked to deliver drugs for Sergeant F____ and refused to do so
* he was then charged with disobeying a lawful order given by Sergeant F____ to serve as a paperwork runner
* that was the first time he ever saw drugs such as cocaine, heroin, acid (hallucinogens), uppers (stimulants), and downers (sedatives)

3.  The applicant provides no additional 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 enlisted in the Regular Army on 12 March 1981.

3.  On 11 March 1982, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order to deliver an ammunition request form to the ammunition supply point on 11 March 1982.

4.  The applicant was AWOL from 12 March 1982 through 14 March 1982 when he returned to his unit at Fort Bragg, NC.  He was again AWOL from 9 June 1982 until on or about 4 April 1983 when he was returned to military control at the U.S. Army Personnel Control Facility, U.S. Army Training Center and Fort Dix, Fort Dix, NJ.

5.  Charges were preferred against him on 5 April 1983 for being AWOL from his unit from on or about 9 June 1982 until on or about 4 April 1983.

6.  On 6 April 1983, he voluntarily 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.  He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him.  He acknowledged that he was guilty of the charge against him.  He did not submit statements in his own behalf.

7.  On 21 April 1983, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of a discharge under other than honorable conditions.

8.  On 13 May 1983, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 4 months, and 4 days of total creditable active military service with 302 days of lost time due to being AWOL.

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

10.  There is no evidence of record and the applicant provided no evidence supporting his contention that any disciplinary action taken against him, including his discharge, was the result of his refusal to follow unlawful orders involving narcotics or the result of a documented disability from which he suffers.

11.  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 request for an upgrade of his discharge under other than honorable conditions to honorable was carefully considered; however, the evidence is insufficient to support his request.

2.  His records show he received NJP for disobeying a lawful order and he was AWOL on two occasions totaling 302 days, an offense punishable under the UCMJ with a punitive discharge.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial that may have resulted in a felony conviction.

3.  He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

4.  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.

5.  Although he stated he was ordered to participate in illegal acts and had a nervous breakdown resulting in his AWOL status, there is no evidence in his records and he provided no evidence to support this contention.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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 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)                                         AR20140010611



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ABCMR Record of Proceedings (cont)                                         AR20140010611



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