IN THE CASE OF:  	  

		BOARD DATE:  3 September 2015	  

		DOCKET NUMBER:  AR20150000542 


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, in effect:

* the only misconduct was one incident of being absent without leave (AWOL) which was revoked after he was granted leave and left the base 
* he would like to seek medical benefits, and have access to care and be able to join the American Legion 
* upon finding out he was AWOL, his uncle paid for his airline ticket, and he flew back and turned himself in
* his conduct and efficiency ratings were good and he had no problems in the military until he went AWOL 
* he received multiple awards and decorations and he has been a good citizen since his discharge with no police record 
* his command abused their authority when he was discharged, because he was not at fault 
* he believes he did the right thing at the time and instead of giving him a chance, his command discharged him

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army on 13 February 1984.  He completed the training requirements and he was awarded military occupational specialty 63W (Wheel Vehicle Repairer). 

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

4.  On 23 August 1984, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully communicating a threat against a German national.  

5.  On 21 January 1985, he departed his Fort Carson unit in an AWOL status, and on 20 February 1986 he was dropped from the rolls as a deserter.  He returned to military control on 14 March 1985. 

6.  It appears on 18 March 1985 court-martial charges were preferred against him for two specifications of being AWOL from 21 January to 12 February 1985 and from 19 February to 14 March 1985.

7.  On 20 March 1985, 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, the maximum permissible punishment authorized under the 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, 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 to submit a statement on his own behalf. 

8.  In his statement, the applicant indicated:

* he wanted a discharge because he felt he did not belong here; he lost all his military bearing and he did not like the way the Army was
* the Army seemed to interfere with his personal life and life in general
* he wanted to go back and pick up his old job without having to worry about what details or jobs the next day holds 

9.  The applicant's immediate and senior commanders recommended approval of the discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The immediate commander and senior commander both stated: 

* the applicant’s performance was routinely substandard and his behavior towards noncommissioned officers was typically blatant disregard toward their authority 
* his personal appearance was unkempt and he had no desire to make any contributions to the organization
* there was no indication the applicant had any potential for rehabilitation; he had no future in the Army  

10.  On 11 July 1986, consistent with the chain of command's recommendations and following a legal review for legal sufficiency, 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 30 April 1985, the applicant was discharged accordingly. 

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 1 year, 1 month, and 26 days of active service and he had lost time from 21 January to 12 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.  Further, his discharge accurately reflects his overall record of service.

2.  Based on his record of indiscipline, which included one instance of NJP and two instances of being AWOL, 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 service to either honorable or general.

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)                                         AR20150000542



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ABCMR Record of Proceedings (cont)                                         AR20150000542



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