IN THE CASE OF:	   

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140011283 


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
* correction of his dates of service

2.  The applicant states:

* his mother was having health issues at the time; he requested leave through the chain of command but he was told he did not have any leave
* he consulted with the chaplain and requested 30 days of leave but his chain of command denied his request again, so he decided to go in an absent without leave (AWOL) status
* he never signed his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his dates of service are incorrect; he entered active duty on 25 August 1988 not on 2 September 2000; he was separated on 27 December 1989
* he believes he had accrued sufficient leave at the time, approximately 28 days, and although he requested 60 days of leave, the difference would have been advanced leave
* he feels his discharge was inequitable because it was based on one isolated incident and it also violated Army regulations
* he was never told he was awaiting trial by a court-martial; he was never offered an Article; and he was rushed into accepting the discharge despite asking for a general discharge

3.  The applicant provides his DD Form 214. 

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 U.S. Army Reserve under the Delayed Entry Program (DEP) on 5 April 1988.  He was discharged from the DEP on 1 September 1988 and enlisted in the Regular Army on 2 September 1988.  

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewmember).

4.  He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Grenade bar. 

5.  On 13 June 1989, he departed his unit in an AWOL status and on 12 July 1989, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities and returned to military control on 2 November 1989.  

6.  On 9 November 1989, court-martial charges were preferred against the applicant for one specification of AWOL from 15 June 1989 to 2 November 1989. 

7.  On 9 November 1989, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were 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 acknowledged:
	a.  he was making this request of his own free will and had not been subjected to any coercions whatsoever by any person;

	b.  he understood by requesting a 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 dishonorable discharge;

	c.  he acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits that he could 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 law; and

	d.  he stated that under no circumstances did he desire further rehabilitation or to perform further military service.

8.  On 14 November 1989, his legal counsel submitted a statement wherein he stated that the applicant exercised his election of rights under the provisions of Army Regulation 635-200 to submit a statement in his own behalf.  He was given ample time and opportunity to generate a statement but he failed to do so. 

9.  On 17 November 1989, the applicant's immediate commander recommended approval of the discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

10.  On 14 December 1989, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 27 December 1989, he was discharged accordingly.

11.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 11 months and 4 days of active service and he had lost time from 13 June 1989 to 1 November 1989.  Additionally, his DD Form 214 shows in: 


* Item 12a (Date Entered Active Duty (AD) This Period) - 88-09-02
* Item 12b (Separation Date This Period) - 89-12-27
* Item 12c (Net Active Duty This Period) - 00-11-04
* Item 18 (Remarks) - Period of DEP 880405-880901
* Item 21 (Signature of Member Being Separated) - Soldier not Available to Sign

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

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

	a.  Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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, 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. 

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item preparation instructions for the DD Form 214 as follows:

* item 12a shows the date of entry on active duty
* item 12b shows the Soldier's transition/separation date
* item 12c shows all active service, less lost time
* item 21 states to enter "Soldier not Available to Sign" when a Soldier is not available to sign the DD Form 214

15.  Army Regulation 635-5 states DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in item 12c.  However, it is creditable service for completing the statutory mandatory service obligation and will be entered in item 18.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the characterization of service: 

	a.  The applicant's record shows he was charged with the commission of offenses 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.

	b.  Contrary to his argument that he was never told he was awaiting trial by a court-martial; he was never offered an Article 15, and that he was rushed into accepting the discharge despite asking for a general discharge, the evidence of record clearly shows court-martial charges were preferred against him and that on 9 November 1989, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions. 

	c.  There is no evidence in his records and he provides none to show he requested and/or was denied leave.  But even if he had been, going AWOL was not the answer to his issue.  There would have been many other legitimate avenues for him to address this issue had he utilized them. 

	d.  The applicant was discharged because he voluntarily elected the discharge in lieu of facing a court-martial.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory. Therefore, there is no basis for upgrading the applicant's discharge to either an honorable or a general discharge.

2.  With respect to his dates of entry and separation: 

	a.  He enlisted in the DEP on 5 April 1988 and he was discharged from the DEP on 1 September 1988.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes; however, it is creditable service for completing the statutory military service obligation and will be entered in item 18. In his case, his DD Form 214 reflects his DEP time. 

	b.  He did not enlist in the Regular Army on 25 August 1988 as he contends.  He enlisted in the Regular Army on 2 September 1988 and this date is correctly shown in item 12a of his DD Form 214.  Item 12a does not show the year as "2000" as he contends.  It shows the year as "1988." 

	c.  It is unknown why the applicant did not sign his DD Form 214.  But regardless, this does not invalidate the DD Form 214 or make it an incorrect form.  When a Soldier is not available to sign the DD Form 214, the entry "Soldier not Available to Sign" is placed in item 21. 

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)                                         AR20140011283





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ABCMR Record of Proceedings (cont)                                         AR20140011283



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