IN THE CASE OF:	  

		BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150002350 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect:

* his "dishonorable discharge" was unfair 
* he had had honorable service and reenlisted; he also extended to go to Germany with his unit
* he was a young man who had recently gotten married
* he had marital problems, financial problems, and emotional problems
* he learned his wife had had an affair so he filed for divorce
* he had just turned 17 when he joined the Army in 1981
* he has lived with the dishonor of a less than honorable discharge for almost 30 years
* he requests any upgrade he can get; he served proudly
* his daughter joined the U.S. Marine Corps and just came back from Afghanistan
* he is not looking for any benefits from the Department of Veterans Affairs, he just wants to get rid of the word "dishonorable"

3.  The applicant provides no supporting additional documentary 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 enlisted in the Regular Army on 15 April 1981 at the age of 17.  After completing initial training, he was awarded military occupational specialty 63T (Bradley Fighting Vehicle Systems Mechanic).  The highest rank/grade held was sergeant/E-5.  He reenlisted on 26 March 1984.

3.  Available records show he served in Korea and at Fort Hood, TX prior to his assignment to Germany in June 1986.  

4.  According to a U.S. Criminal Investigation Command (CID) report, dated 27 March 1987, the applicant negotiated a total of 10 worthless checks for a face value of $1,486 between November and December 1986.  On 24 December 1986, he rented a car from a local facility, drove it to the Frankfurt Airport, and departed Germany, leaving the car at the airport.  He was scheduled to return to his unit on 3 January 1987, but did not return.  His unit reported him as absent without leave (AWOL) as of 4 January 1987.

5.  On 19 July 1987, he was returned to military control and assigned to the U.S. Army Personnel Control Facility at Fort Sill, OK.

6.  On 20 July 1987, his commander initiated court-martial charges against the applicant.  He was charged with one specification of AWOL for the period 4 January 1987 to 19 July 1987 and one specification of wrongful appropriation of an automobile.

7.  On 29 July 1987, 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.

8.  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 his  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
* 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

9.  On 13 August 1987, the separation authority approved his request for discharge in lieu of court-martial with an under other than honorable conditions discharge.  On 26 August 1987, he was discharged accordingly.

10.  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 also shows he completed 5 years, 9 months, and 27 days of net active service this period.  He had 196 days of lost time.  

11.  On 14 February 1991, the applicant applied to the Army Discharge Review Board (ADRB) requesting his discharge be upgraded.  On 6 June 1994, the ADRB denied his request.

12.  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.  Records show the applicant was 17 years of age at the time of his enlistment and age 23 at the time his separation action was approved.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

4.  Though limited to a period of approximately 8 months out of more than 5 years of service, the applicant's record reflects more than one incident of indiscipline within that timeframe.  The applicant's misconduct clearly diminished the overall quality of his service subsequent to his reenlistment 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)                                         AR20150002350





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ABCMR Record of Proceedings (cont)                                         AR20150002350



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