IN THE CASE OF:	

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140020831 


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 reenlisted for airborne training after 3 years of honorable service and when he was not given his training, he informed his commander of this breach of contract 
* his commander told him the Army did not have to send him to airborne school, so he informed his commander that he would be going home
* he went absent without leave (AWOL) and did not know where to turn for assistance 
* he turned himself in at Fort Knox some 2 years later but he was not incarcerated; in fact, he was told he could stay in the service and start over as a private; he refused
* he was promptly driven to the back gate with a bag of oranges and told to go home; all his service was honorable until his reenlistment and breach of contract

3.  The applicant provides his 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's records show he enlisted in the Regular Army on 22 July 1980.  He completed the training requirements and he was awarded military occupational specialty 11B (Infantryman).

3.  On 31 January 1983, at Fort Ord, CA, he executed a 3-year reenlistment.  His DD Form 4 (Enlistment/Reenlistment Document) does not show he reenlisted for airborne training.  It shows he reenlisted for the present duty assignment option (he was assigned to the 3rd Battalion, 32nd Infantry). 

4.  On 29 June 1983, he was issued assignment instructions to report to the 21st Replacement Detachment in Germany with a report date of November 1983.  He was also issued port call instructions to report to St. Louis International Airport on 27 November 1983 for transportation to Rhein Main Air Force Base, Germany. 

5.  On 27 November 1983, having failed to report on his prescribed report date to St. Louis International Airport for further movement to 21st Replacement Detachment in Germany, he was reported AWOL.  He was also dropped from the Army rolls on 27 December 1983. 

6.  He surrendered to military authorities at Fort Sheridan, IL on 1 March 1985.  He was assigned to Fort Knox, KY for administrative processing.  

7.  On 7 March 1985, court-martial charges were preferred against the applicant for one specification of AWOL from 27 November 1983 to 1 March 1985.  

8.  On 8 March 1985, 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 a 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 coercion 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 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 laws; 

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

	e.  he elected not to submit a statement on his own behalf. 

9.  On 19 April 1985, the applicant's immediate and intermediate commanders recommended approval of the discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

10.  On 26 April 1985, consistent with the chain of command's recommendations, 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 23 May 1985, the applicant was discharged accordingly. 

11.  His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service in lieu of court-martial with an under other than honorable conditions characterization of service.  His DD Form 214 also shows he completed 3 years and 7 months of active service and he had 460 days of lost time from 27 November 1983 to 28 February 1985. 

12.  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. 

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. 

DISCUSSION AND CONCLUSIONS:

1.  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.  

2.  His reenlistment contract does not reflect that he reenlisted for airborne school.  There is no evidence of a breach of contract as he contends.  But even if he did in fact reenlist for any option and the Army did not honor that option, there would have been many other legitimate avenues (such as the chain of command, reenlistment office, and/or Office of the Inspector General) to address this issue if he chose to exercise those options.  Instead, he went on a lengthy AWOL. 

3.  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.
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)                                         AR20140020831





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ABCMR Record of Proceedings (cont)                                         AR20140020831



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