BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20150000110 


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 that his discharge under other than honorable conditions be upgraded. 

2.  The applicant states that his discharge was not upgraded to allow him to get his benefits.  He also states that his “DDT14” states he has flat feet and rickets. He cannot hold down a job because of his feet and his back hurts.

3.  The applicant provides no additional documents with his application.

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 with a moral waiver on 29 January 1985 for a period of 3 years and training as a Lance Missile Crewman.  At the time of his enlistment he was diagnosed as having pes planus (flat feet) and was found qualified for enlistment.

3.  He completed his one-station unit training at Fort Sill, Oklahoma and remained assigned to Fort Sill for his first assignment.

4.  On 18 August 1986, he was issued a General Officer Letter of Reprimand for driving under the influence of alcohol while on post.  The letter was imposed as an administrative punishment and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).  On 25 August 1986, the applicant acknowledged receipt of the letter of reprimand.  Then on 8 September 1986, the general directed that the letter be filed in the applicant's official military personnel file (OMPF).

5.  On 30 November 1987, he went absent without leave (AWOL) and remained absent in desertion until he was apprehended by civil authorities in New Haven, Connecticut and was initially transferred to Fort Devens, Massachusetts and then to Fort Dix, New Jersey.  He returned to duty on or about 31 July 1989.

6.  On 10 August 1989, court-martial charges were preferred against the applicant for his period of AWOL from 30 November 1987 to 31 July 1989.

7.  On 11 August 1989, he consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial and the maximum possible punishment under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

8.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He acknowledged he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that he understood the elements of the offense charged and he was guilty of the charge against him. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a under other than honorable conditions discharge.  He acknowledged he had been advised of and understood the possible effects of a under other than honorable conditions discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life due to the issuance of a under other than honorable conditions discharge.

	f.  He waived his rights and elected not to provide a statement in his own behalf.  

9.  On 10 October 1989, his commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and that he be given a under other than honorable conditions discharge.

10.  On 13 October 1989, the separation authority approved the applicant's request to be discharged for the good of the service with an under other than honorable conditions discharge.

11.  On 25 October 1989, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, and his service was characterized as under other than honorable conditions.  It also shows he completed 3 years and 26 days of total creditable active military service with 608 days of lost time (30 November 1987 to 30 July 1989).

12.  There is no evidence in the available records to show the applicant applied to 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.

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in 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 under other than honorable conditions discharge was considered appropriate at the time.

	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 evidence does not support his request that his discharge be upgraded.

2.  Court-martial charges were preferred against him for AWOL for a period of 608 days, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  

3.  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.  In doing so, he waived his opportunity to appear before a court-martial.  He also admitted he was guilty of the offenses for which he was charged.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  The applicant's contentions are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of the applicant’s absence and the lack of mitigating circumstances.  His service simply did not rise to the level expected of a Soldier.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of an applicant to gain "veteran" status or based on the passage of time.

6.  Accordingly, there appears to be no 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)                                         AR20150000110



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ABCMR Record of Proceedings (cont)                                         AR20150000110



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