IN THE CASE OF:	  

		BOARD DATE:	    13 January 2011

		DOCKET NUMBER:  AR20100020110 


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 discharge.

2.  The applicant states he was told his discharge would be upgraded.

3.  The applicant did not provide any documentary 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's records show he enlisted in the Regular Army on 16 June 1976 and held military occupational specialty (MOS) 76X (Subsistence Supply Specialist).  The highest rank/grade the applicant attained during his military service was private (PV2)/E-2.  He was assigned to Fort Knox, KY.

3.  On 20 December 1976, he departed his unit in an absent without leave (AWOL) status but returned to military control on 21 December 1976.  However, on 7 January 1977 he again departed his unit in an AWOL status and on 5 February 1977 he was dropped from the Army rolls.  He returned to military control on 9 February 1977.

4.  On 14 February 1977, court-martial charges were preferred against the applicant for two specifications of being AWOL from 20 to 21 December 1976 and 7 January 1977 to 9 February 1977.

5.  On 15 February 1977, 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 Uniform Code of Military Justice (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 chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge he indicated he understood that 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 that if the discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  In connection with his request for discharge, he submitted a statement wherein he stated that after MOS training he was tempted to go AWOL because he was too close to home and that it would be better for all if he just got out.

8.  On 28 February 1977, his immediate and intermediate commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

9.  On 28 February 1977, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 18 March 1977, the applicant was accordingly discharged.

10.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 8 months of creditable active military service and he had 34 days of lost time.

11.  After a break in service, he enlisted in the U.S. Army Reserve for a period of 6 years on 22 August 1980.  He was subsequently ordered to active duty for a period of 2 years.  He was ordered to report to the U.S. Army Reception Station, Fort Jackson, SC, on 24 October 1980, but failed to do so.  Accordingly, he was reported as AWOL on the same date and was dropped from the Army rolls on 23 November 1980.

12.  He was apprehended by civil authorities on 17 October 1981 in Louisville, KY, for the civilian charge of forged instruments and he was confined in Jefferson County Jail, Louisville, KY, pending his court appearance.

13.  On 15 March 1982, he appeared before a Circuit Court in Louisville, KY, and he was sentenced to 6 months of imprisonment.  However, on 16 April 1982 his sentence was probated and he returned to military control on 16 April 1982.

14.  On 16 April 1982, he again departed his unit in an AWOL status and on 15 May 1982 he was again dropped from the Army rolls.  He was apprehended by civilian authorities in Louisville, KY, on 29 October 1982.  However, 2 days later on 31 October 1982 he again departed his unit in an AWOL status.  He was again apprehended by civil authorities and sentenced on 31 January 1984 to 5 years of confinement for the civil charge of criminal possession of a forged instrument (13 counts).

15.  On 2 March 1984, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 for conviction by a civil court.

16.  On 9 March 1984, the applicant acknowledged receipt of the commander's intent to separate him.  He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consulting counsel, waived consideration of his case by a board of officers, waived personal appearance before a board of officers, elected not to submit a statement on his own behalf, and indicated he did not intend to appeal his civil conviction.

17.  He further indicated he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

18.  On 15 March 1984, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for conviction by a civil court.  The immediate commander recommended an under other than honorable conditions discharge.  Additionally, on the same date his intermediate commander reviewed the recommended separation action and recommended approval.

19.  On 9 April 1984, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of conviction by a civil court and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  On 25 April 1984, the applicant was accordingly discharged.

20.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for misconduct -conviction by civil court with a character of service of under other than honorable conditions.  This form further confirms he completed 2 days of creditable active military service during this period and he had 1,278 days of lost time.

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

22.  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.  Chapter 14 establishes policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of this regulation.

	c.  Paragraph 3-7a states 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.

	d.  Paragraph 3-7b states 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 contends that his discharge should be upgraded.  He did not specify which discharge.

2.  His records show that during his first period of service he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  His records also show that during his second period of service he had an extensive history of AWOL that culminated in a conviction by civil authorities for the criminal charge of possession of a forged instrument.  Accordingly, his chain of command initiated separation action against him due to his civil conviction.  All requirements of law and regulation were met and again his rights were fully protected throughout the separation process.

4.  The applicant's two discharges were appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His misconduct diminished the quality of his service and rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of either 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 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)                                         AR20100020110



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ABCMR Record of Proceedings (cont)                                         AR20100020110



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