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ARMY | BCMR | CY2011 | 20110004617
Original file (20110004617.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004617 


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 discharge to an honorable discharge (HD).  

2.  He states that he received a general discharge (GD) and it should have been changed to an HD 6 months after he was released from active duty.  

3.  He provides no additional documents.  

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 25 April 1978 for a period of
3 years.  

3.  He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for the following offenses:

* failing to obey a lawful order
* failing to go at the time prescribed to his appointed place of duty
* being absent without leave (AWOL) from 22 December 1978 to 3 January 1979

4.  On 6 March 1980, charges were preferred against him for being AWOL on six separate occasions during the periods:

* 22 December 1978 to 2 January 1979
* 13 to 15 November 1979
* 17 to 19 November 1979
* 21 November to 17 December 1979
* 27 December 1979 to 27 January 1980
* 30 January to 4 February 1980

5.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was in confinement from 22 February to 2 March 1980 and from 4 to 12 March 1980.

6.  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.  In doing so, he admitted guilt to the offenses charged and acknowledged he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He did not submit statements in his own behalf.  

7.  The separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of court-martial with a UOTHC discharge.

8.  On 23 April 1980, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UOTHC discharge.  He completed 1 year, 8 months, and 10 days of creditable active service and he had 109 days of lost time due to being AWOL and in confinement.  

9.  On 7 April 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.  Although an HD or GD is authorized, a UOTHC discharge is normally considered appropriate.

   b.  Paragraph 3-7a provides that an HD 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.

	c.  Paragraph 3-7b states a GD 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he received a GD and it should have been changed to an HD 6 months after he was released from active duty.  However, the available evidence shows he received a UOTHC discharge, and the Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  

2.  The applicant's voluntary request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.  

3.  His service record shows he received five Article 15s for various offenses and he had 109 days of lost time due to being AWOL and in confinement.

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD or a GD.



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)                                         AR20110004617



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ABCMR Record of Proceedings (cont)                                         AR20110004617



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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