BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100023552


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.

2.  The applicant states, in effect, his discharge should be upgraded.  He states he spent 3 years and 10 months conducting himself as a professional Soldier and adhering to the core military values.  He states he is a 49-year old man, suffering from the indiscretions of his past.  He requests the Board examine his military records and approve his request for discharge upgrade.  He states he currently holds an under other than honorable conditions discharge and he would greatly appreciate an upgrade to an honorable discharge.  He concludes by stating he respectfully requests the Board's assistance with his issue and hopes the Board will help him in redirecting his life.

3.  The applicant provides 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 enlisted in the Regular Army on 26 September 1979.  He completed training and he was awarded military occupational specialty 05B (Radio Operator).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  His records show he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for the following offenses:

* on 26 February 1982, for failing to obey a lawful order on 28 January 1982
* on 10 December 1982, for failing to obey a lawful order on 21 October 1982
* on 6 June 1983, for being absent without leave (AWOL) on 20 May 1983

4.  On 11 June 1983, he was reported as AWOL from his unit, Headquarters and Headquarters Company, 1st Battalion, 63rd Armor Regiment, Fort Riley, KS.  On 25 July 1983, he surrendered to military authorities at Fort Knox, KY.

5.  On 26 January 1987, court-martial charges were preferred against him for being AWOL during the period 11 June to 25 July 1983.

6.  On 28 July 1983, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was 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 law. 

8.  On 17 August 1983, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 14 September 1983, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he completed 3 years, 10 months, and 4 days of total active service.  He also had 45 days of time lost due to AWOL.

9.  On 8 January 1986, the Army Discharge Review Board (ADRB) denied his request to upgrade his discharge.  

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 3-7a, 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.

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 request for upgrade of his under other than honorable conditions discharge has been carefully considered; however, there is insufficient evidence to support this request.

2.  His records show 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.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on the foregoing, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100023552



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