IN THE CASE OF:	  

		BOARD DATE:	  13 April 11

		DOCKET NUMBER:  AR20100023675 


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 to upgrade his under other than honorable conditions discharge to an honorable discharge. 

2.  He states, in effect, he completed a total of 3 years in the Army from 18 April 1979 to 16 November 1982.  It would be in the interest of justice to grant relief so that he can receive his military benefits.   

3.  He provided a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim).

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.  His military records show he enlisted in the U. S. Army Reserve (USAR), Delayed Enlistment Program (DEP) for a period of 6 years, on 13 March 1979.  He was released from DEP status and on 18 April 1979, he enlisted in the Regular Army for 3 years.  After the completion of training, he served in military occupational specialty 36K (Tactical Wire Operations Specialist). 

3.  On 30 September 1982, a DD Form 458 (Charge Sheet) was prepared by his commander which shows he was charged with violating Article 86 of the Uniform Code of Military Justice (UCMJ) for going absent without leave (AWOL) from 
14 June to 28 September 1982.  

4.  His record contains a Headquarters, Personnel Control Facility memorandum, Subject:  Admission of AWOL for Administrative Purposes, dated 30 September 1982.  This document shows he knowingly, willingly, and voluntarily declared that he admits he was AWOL from the U.S. Army from 14 June to 28 September 1982.  

5.  A Special Processing Company, U.S. Army Personnel Control Facility memorandum, Subject:  Medical Evaluation, dated 30 September 1982, shows he elected not to undergo a medical examination prior to his discharge from the Army. 

6.  On 1 October 1982, after consulting with legal counsel, he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, For the Good of the Service, in lieu of trial by court-martial.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement on his own behalf.

7.  His immediate commander endorsed his request for discharge for the Good of the Service and noted that the applicant’s conduct rendered him triable by court-martial.  Based upon his previous record, any punishment was expected to have a minimal rehabilitative effect.  

8.  His record contains a USAARMC Form 4939 that shows the following:

	a.  He served 3 years and 10 days in the enlistment or period of service;

	b.  He was promoted to the rank/pay grade:

		(1)  Private/E-2 on 18 October 1979
		(2)  Private First Class/E-3 on 18 April 1980
		(3)  Specialist Four/E-4 on 1 March 1981

	c.  He had not been demoted at anytime during his service;

	d.  His periods of AWOL were:

		(1)  From 7 to 25 August 1981
		(2)  From 7 October to 15 November 1981
		(3)  From 14 June to 27 September 1982;

	e.  He received one count of nonjudicial punishment (NJP) under Article 15 of the UCMJ;

	f.  He had no court-martial convictions; and

	g.  No special citations or awards.

9.  On 22 October 1982, the General Court-Martial Convening Authority approved his request for discharge in lieu of trial by court martial.  He directed the applicant be issued an Under Other Than Honorable Conditions, Discharge Certificate and be reduced to the pay grade of private E-1. 

10.  Accordingly, he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, with an "Under Other than Honorable Conditions Discharge," in the rank and pay grade of Private, E-1, on 16 November 1982.  He completed a total of 3 years, 1 month, and 17 days of active service; 1 month and 5 days of prior inactive service and had 165 days of lost time due to AWOL.   

11.  He provided a VA Form 21-4138 in which he states his regrets for not completing his term of service.  He contends his periods of AWOL were due to his immaturity and family problems.  He believes that he faithfully served his country and respectfully requests a hearing in order to receive an honorable discharge. 

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

13.  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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his under other than honorable conditions discharge to an honorable discharge was carefully considered, however, is not supported by the evidence of record. 

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows he was charged with numerous violations under the UCMJ, which included NJP.  Court-martial charges were preferred against him; however, he voluntarily submitted a request for discharge For the Good of the Service, in lieu of trial by court-martial.  His chain of command supported his request and accordingly, he was discharged.

3.  The evidence shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis to grant the 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)                                         AR20100023675





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ABCMR Record of Proceedings (cont)                                         AR20100023675



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