IN THE CASE OF:	  

		BOARD DATE:	    27 July 2010

		DOCKET NUMBER:  AR20100007731 


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 to a general discharge.

2.  The applicant states his discharge should be upgraded because he went absent without leave (AWOL) to protect himself and his wife from bodily harm.  He contends that while assigned to Fort Hood, TX, his wife was raped and taken to Darnall Army Hospital.  His AWOL was an attempt to protect them from drug dealers and pushers.  Later, the assailant was arrested and charged with rape in Copperas Cove, TX.  He feels he was railroaded into accepting the court-martial without representation.  He contends that had all the evidence, facts, and circumstances concerning his AWOL been heard during his court-martial, there would have been a different outcome.

3.  The applicant provides the following in support of his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 22 September 1982
* Department of Veterans Affairs (VA) Form 21-4142 (Authorization and Consent to Release Information to the VA), dated 28 December 2009
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 28 December 2009



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The American Legion represents the applicant and restates his request for upgrade of his discharge to general and the contentions as stated above.

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 for a period of 4 years on 23 June 1975.  He was trained in and awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between 18 July 1976 and 28 November 1977.  His misconduct included two offenses of disobeying a lawful order and one AWOL offense.

4.  On 16 August 1982, his command preferred court-martial charges against him for one specification of being AWOL from 5 July 1978 through on or about 12 August 1982.

5.  On 16 August 1982, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge 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 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 request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by anyone.  He also indicated he 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 discharge under other honorable conditions.  He further acknowledged he understood if the discharge request were 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.  He also elected not to submit a statement in his own behalf.

7.  On 31 August 1982, the separation authority approved his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 22 September 1982, he was discharged accordingly.

8.  His DD Form 214 confirms he completed 3 years, 1 month, and 18 days of creditable active service with 1504 days of lost time.

9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.

11.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his under other than honorable conditions discharge be upgraded to a general discharge was carefully considered; however, there is insufficient evidence to grant relief.

2.  The record shows he was charged with the commission of an offense 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.

3.  There is no evidence to support his contention that he and his wife were in physical danger had they remained at Fort Hood, TX or that he had attempted to address such problem with his chain of command or other support channels.  The applicant was not court-martialed.  He requested discharge in lieu of court-martial.  Had he accepted trial by court-martial, he could have brought forth these contentions as matters in extenuation or mitigation.  

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20100007731



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)