IN THE CASE OF:	  

		BOARD DATE:	    3 February 2011

		DOCKET NUMBER:  AR20100020537 


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.

2.  The applicant states he was told his discharge would be upgraded over the years but it is still recorded as other than honorable.

3.  The applicant provides no 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 enlisted in the Regular Army on 6 July 1978.  Upon completion of training he was awarded military occupational specialty 62F (Lifting and Loading Equipment Operator).
3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on the following occasions:

	a.  on 23 July 1981 for two instances of dereliction in the performance of his duties;

	b.  on 18 August 1981 for disobeying a lawful order from his superior noncommissioned officer and for failing to go at the time prescribed to his appointed place duty on two occasions;

	c.  on 20 November 1981 for failing to go at the time prescribed to his appointed place duty on two occasions;

	d.  on 27 January 1982 for being absent without leave (AWOL) during the periods 3-16 December 1981 and 4-8 January 1982 and for conspiracy to steal from another Soldier.

4.  The applicant's record contains DA Forms 4187 (Personnel Action) that show he departed AWOL on 23 March 1982 and remained AWOL until he was apprehended by civil authorities on 17 June 1982.

5.  On 22 June 1982, charges were preferred against him for the AWOL offense.

6.  On 23 June 1982, he consulted with legal counsel and he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, due to charges being preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

7.  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 Veterans Administration (VA), 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.

8.  On 23 July 1982, the separation authority approved his request for discharge and directed his reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 6 August 1982, he 

was discharged accordingly.  He had completed 3 years, 9 months, and 20 days of total active service with 103 days of time lost due to AWOL.

9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 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, 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.

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 contention that his under other than honorable conditions 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 charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

4.  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.

5.  His record of indiscipline includes nonjudicial punishment on four occasions and court-martial charges for AWOL.  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.

6.  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 discharge upgrade.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

7.  In view of the foregoing, 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)                                         AR20100020537



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ABCMR Record of Proceedings (cont)                                         AR20100020537



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