BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100013677 


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 to an honorable discharge.  He also requests his award of the Army Good Conduct Medal.

2.  The applicant states, in effect, he was awarded the Army Good Conduct Medal for his first 3 years of service and he was going through marital problems at the time he went absent without leave (AWOL).

3.  The applicant provided no 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 requested award of the Army Good Conduct Medal which is currently shown on his DD Form 214.  However, the ABCMR does not issue awards.  The applicant is advised that requests for medal sets for previously approved awards should be forwarded to the National Personnel Records Center (NPRC), ATTN: Army Reference Branch, 9700 Page Boulevard, St. Louis, Missouri 63132-5200.  The NPRC will verify the awards to which a retiree/veteran is entitled and forward the request with verification to the appropriate service department for issuance of the medals.  Requests to the NPRC may be submitted via a letter or completing a Standard Form 180 (which can be found at http://www.archives.gov/st-louis/military-personnel/index.html.)  Requests must include a copy of the retiree's/veteran's separation or discharge paperwork and any other supporting documentation to substantiate his request.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant's record shows he enlisted in the Regular Army on 25 September 1979.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 54E (Nuclear, Biological, and Chemical Specialist).  

4.  His record reveals he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 15 April 1983 for the following offenses:

* failing to go at the time prescribed to his appointed place of duty on
28 February 1983
* being AWOL from 7-9 March 1983
* failing to go at the time prescribed to his appointed place of duty on
9 March 1983
* failing to go at the time prescribed to his appointed place of duty on
29 March 1983

5.  On 16 September 1983, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 23 May 1983 to on or about 15 September 1983 and one specification of wrongfully possessing two marijuana cigarettes.

6.  On 21 September 1983, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, 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 discharge for the good of the service - in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations), chapter 10.

7.  In his request for discharge, he acknowledged he understood if the discharge request was approved, he may be discharged under conditions other than honorable and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood 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 expect to encounter substantial prejudice in civilian life.  

8.  On 26 September 1983, his chain of command recommended approval of his discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 27 September 1983, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.  On 25 October 1983, the applicant was discharged accordingly.  The
DD Form 214 he was issued shows he completed a total of 3 years, 8 months, and 13 days of total active service with 141 days of time lost.

10.  There is no evidence in the available records to indicate he requested emergency leave to handle family matters.

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

12.  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.

13.  Army Regulation 635-200, 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.

14.  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 under other than honorable conditions discharge should be upgraded to an honorable discharge was carefully considered and found to be without merit.

2.  He claims he went AWOL because of marital problems.  However, there is no evidence in the available records nor did he provide any evidence to support this argument.  Additionally, he had many legitimate avenues through which he could have received assistance or relief for this situation had he chosen to use them.

3.  His 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.  As such, he voluntarily requested discharge from the Army to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

4.  His record of service shows he received NJP under the provisions of Article 15, UCMJ, on 15 April 1983, for being AWOL and failing to go at the time prescribed to his appointed place of duty.  On 23 May 1983, he again went AWOL and he was subsequently charged with AWOL and possession of marijuana which was the basis for his voluntary discharge.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable discharge.
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)                                         AR20100013677



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ABCMR Record of Proceedings (cont)                                         AR20100013677



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