IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100013464 


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.  He states he should be given the benefit of the doubt for he believes his infractions were "minor" in nature.  He states he believes he did not have adequate counsel and he was under the impression he would have an "automatic" review for upgrade after 3 years.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 3 April 1981 for a period of
3 years.  Upon completion of initial entry training he was awarded military occupational specialty 25L (Air Defense Artillery Command and Control System Operator/Repairer).

3.  On 9 June 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the prescribed time to his appointed place of duty.

4.  On 25 March 1982, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 18 January 1982 to 23 March 1982 from his unit at Fort Bragg, NC.

5.  He was medically evaluated on 27 March 1982 and found medically qualified for separation consideration under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  During a mental status evaluation on 31 March 1982, it was determined his behavior was normal, he was fully alert, he was fully oriented, his mood or effect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The examiner opined that the applicant has the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

6.  On 31 March 1982, he requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

7.  On 7 May 1982, 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 court-martial and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 19 May 1982, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time confirms he completed 11 months, and 12 days of net active service and that his service was characterized as under other than honorable conditions.  This form also shows he had time lost from 18 January 1982 to 22 March 1982.

9.  On 7 May 1985, the Army Discharge Review Board (ADRB) unanimously voted to deny the applicant's request to upgrade his discharge.  The ADRB determined the applicant's discharge was proper and equitable with his discharge properly reflected his service characterization as under other than honorable conditions.

10.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge (dishonorable discharge or bad conduct discharge) is authorized for AWOL of 30 days or more.  The maximum punishment for AWOL includes confinement for 12 to 18 months and a forfeiture of all pay and allowances

	b.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

	c.  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 contention that his discharge should be upgraded due to the passage of time, belief that his infractions were "minor" in nature, and that he did not have adequate counsel was carefully considered and determined to be without merit.

2.  He was charged under the UCMJ for being AWOL in excess of 30 days.   This act is a violation of the UCMJ with a maximum punishment of confinement for 12 to 18 months and forfeiture of pay and allowances. 
3.  While he states his counsel was inadequate, he has not provided any compelling evidence to show this to be a true statement.  As required by Army regulation, he met with counsel and he was informed of his rights to include the option to request a discharge or go to trial.  He voluntarily elected a discharge under the provisions of Army Regulation 635-200, chapter 10.  This type of discharge is a voluntary request for discharge in lieu of trial by court-martial.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

5.  The applicant's contention that his discharge should have been automatically reviewed for an upgrade is also without merit.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if it is determined that the characterization of service or the reason for discharge or both were improper or inequitable.

6.  Additionally, his discharge was reviewed by the ADRB in 1985.  In its review the ADRB unanimously voted not to upgrade his discharge stating he had been properly and equitably discharged.

7.  In view of the foregoing, there is no basis for warranting an upgrade of the applicant's 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)                                         AR20100013464



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ABCMR Record of Proceedings (cont)                                         AR20100013464



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