IN THE CASE OF:  	  

		BOARD DATE:  21 May 2015	  

		DOCKET NUMBER:  AR20140017500 


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 his under other than honorable conditions discharge be upgraded to general under honorable conditions.

2.  The applicant states, in effect:

* he should have been discharged initially with a characterization of under honorable conditions; he was an exemplary Soldier with no prior disciplinary actions
* he was discharged because he arrived 24 hours late from liberty

3.  The applicant provides a 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 enlisted in the Regular Army on 9 September 1986.  After completing initial training, he was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade held was private first class/E-3.

3.  Available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) 28 April 1987 for wrongful possession of marijuana and violating a lawful general order by consuming alcohol while under the legal age limit.  His punishment included reduction in rank/grade to private/E-1.

4.  On 2 June 1988, he departed his unit at Fort Ord, CA in an absent without leave (AWOL) status, and on 2 July 1988 he was dropped from the rolls as a deserter.  He turned himself in at Fort Ord and was returned to military control on 14 July 1988.  

5.  On 21 July 1988, his commander preferred court-martial charges against him for being AWOL from 2 June 1988 to 14 July 1988.  Also on 21 July 1988, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he:

* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person 
* understood by requesting 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
* 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 Department of Veterans Affairs
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

7.  On 8 August 1988, the separation authority approved his request for discharge in lieu of court-martial with an under other than honorable conditions discharge.  On 24 August 1988, he was discharged accordingly.

8.  His DD Form 214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 10 months, and 4 days of active service.  He had 42 days of lost time.  He was awarded or authorized the :

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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, an under other than honorable conditions discharge 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 under other than honorable conditions discharge was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record reflects more than one incident of indiscipline.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting an honorable or general discharge.  Accordingly, there is no basis upon which to grant the requested relief.

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)                                         AR20140017500





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ABCMR Record of Proceedings (cont)                                         AR20140017500



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