IN THE CASE OF:	  

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150003233 


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 no less than general.

2.  He states that his discharge was for the good of the service - in lieu of court-martial.  He adds that when a Soldier goes absent without leave (AWOL) he is usually given a general discharge.  He explains that his dream was to be an airborne infantryman, but he broke his foot while in airborne school.  However, after being sent to the 19th Replacement Detachment, he met a noncommissioned officer (NCO) whose job was to place incoming Soldiers in their new unit.  He adds that the NCO would not place him in an airborne unit or send him back to airborne school unless he paid the NCO $250.00.  He says he felt helpless and no one would believe him.  He states he became disillusioned with the Army and went AWOL.  He remained in an AWOL status for 48 days.  He turned himself in to the military police and he was discharged.  He adds that four years later, he enlisted in the Army National Guard (ARNG) and remained there until he was honorably retired.   

3.  He provides his DD Forms 214 (Certificate of Release or Discharge from Active Duty) and an NCO Evaluation Report.

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 1 May 1984 for 4 years with an airborne enlistment option. 

3.  On 30 August 1984, he was seen at sick call.  His chief complaint was recorded as hurting his foot during a night jump the previous night.  An x-ray revealed a fracture of third toe of his left foot.  The toe was immobilized and he was given a 6-week profile.

4.  On 18 January 1985, charges were preferred against him for being AWOL from 27 November 1984 to 14 January 1985.

5.  On 18 January 1985, he consulted with counsel and he voluntarily requested 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.

6.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood that the charges against him authorized the imposition of a bad conduct or dishonorable discharge.  He also understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf.

7.  On 30 January 1985, the Commander, Personnel Control Facility, United States Army Field Artillery Center and Fort Sill, OK recommended approval of the applicant's request for discharge under the provisions of chapter 10.  He stated that the applicant went AWOL for personal reasons.  Additionally, he stated that the applicant had become disillusioned with the military.
8.  On 15 February 1985, the appropriate authority approved his request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 7 March 1985, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions characterization of service.  It also shows he completed 8 months and 20 days net active service during this period with time lost from 27 November 1984 to 13 January 1985 (48 days).

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  On 13 February 1989, he enlisted in the ARNG and served as an infantryman through numerous enlistment/reenlistment options attaining the rank and pay grade of sergeant first class (SFC)/E-7.  He was honorably retired on 30 June 2014 based upon completion of required active duty service.  He served two deployment tours in Iraq from 14 April 2004 thru 12 October 2005 and from 16 March 2010 thru 30 November 2010.  Among his awards he received the Combat Infantryman Badge. 

12.  The applicant provided a DA Form 2166-8 (NCO Evaluation Report) for the period 1 October 2012 thru 30 September 2013.  This report shows he served in the rank of SFC as an infantry platoon sergeant in the ARNG.  Among the comments, his rater stated the applicant was "an honorable Soldier who instills the Army values in his subordinates" and "served as the company XO (executive officer) demonstrating planning and organizational skills of a commissioned officer."  His senior rater found his overall performance was "successful" and his potential for promotion was "superior."  He stated the applicant had high personal values and made independent decisions that had merit and logic. 

13.  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, a discharge under other than honorable conditions 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 argues, in effect, that his discharge should be upgraded because his AWOL was based on him being "medically" released from airborne school due to a foot injury.  There are numerous Soldiers who fail to complete airborne school for numerous reasons, to include medical reasons, who do not subsequently go AWOL.  Therefore, the contention that his discharge merits a possible upgrade based on his premature withdrawal from airborne school does not appear to be sufficient as a basis to upgrade his under other than honorable conditions discharge.

2.  Further, the applicant maintains that when a Soldier goes AWOL he is usually given a general discharge.  The evidence of record shows he signed his voluntary request for discharge indicating that he understood the charges against him authorized the imposition of a bad conduct or dishonorable discharge.  Therefore his contention does not appear to be supported by the available evidence.

3.  Additionally, the fact that the applicant enlisted in the ARNG three years after his discharge from the RA and he has subsequently received an honorable retirement is commendable.  His service in Iraq, award of the Combat Infantryman Badge, and attaining the rank of SFC are noted.  However, it is not a basis for upgrading his earlier discharge.

4.  The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The records show he admitted he was guilty of being AWOL from 27 November 1984 to 13 January 1985.  The record further shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.

5.  The applicant's record of service shows 48 days of lost time due to being AWOL.  Based on his record of indiscipline at the time, the applicant's service does not appear to meet the standards of acceptable conduct and performance of duty for Army personnel.  

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)                                         AR20150003233





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ABCMR Record of Proceedings (cont)                                         AR20150003233



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