BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100014303 


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 that his undesirable discharge be upgraded to  general, under honorable conditions discharge.

2.  The applicant states he performed his duties to the fullest while on active duty.  He contends that he went home on leave and had a death in his family when his first cousin was shot and killed while in his car and the incident caused him to lose focus on his career.  He realizes he made a mistake and takes full responsibility for his actions.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and two DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ).

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 14 March 1979.  He completed initial entry training and was awarded military occupational specialty 64C (Motor Transport Operator).

3.  He accepted nonjudicial punishment on the following occasions:

	a.  on 7 August 1979 for stealing a t-shirt from the American Armed Forces Exchange Service;

	b.  on 13 May 1981 for being drunk and disorderly;

	c.  on 12 January 1982 for failing to go at the time prescribed to his appointed place of duty; and

	d.  on 10 June 1982 for being disrespectful in language towards his superior noncommissioned officer;

4.  He was also officially reprimanded on 10 February 1981 for signing an official sworn statement with intent to deceive the Government into providing funds for property which was not actually stolen and knowing the statement was false at the time he signed it.

5.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions) shows he was absent without leave (AWOL) on 26 August 1982 and surrendered to military authorities on 20 September 1982.

6.  On 11 November 1982, charges were preferred against him for AWOL and for committing assault upon another Soldier by pointing a pistol at him.

7.  On 29 November 1982, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 due to charges being preferred against him under the Uniform Code of Military Justice which authorized the imposition of a bad conduct or dishonorable discharge.

8.  He acknowledged in his request that he understood he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Department of Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

9.  On 1 December 1982, the separation authority approved his request for discharge and directed that he be reduced to the lowest enlisted grade and issued an Under Other than Honorable Conditions Discharge Certificate.  On 
9 December 1982, he was discharged accordingly.  He had completed 3 years, 
8 months, and 26 days of active military service and had accrued about 25 days lost time due to AWOL.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.  An under other than honorable conditions discharge is normally considered appropriate.

12.  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 has been carefully considered.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes nonjudicial punishment on four occasions and court-martial charges for AWOL and assault.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, there is no basis for granting 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)                                         AR20100014303



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ABCMR Record of Proceedings (cont)                                         AR20100014303



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