IN THE CASE OF:	  

		BOARD DATE:	    18 October 2011

		DOCKET NUMBER:  AR20110006220 


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 under other than honorable conditions discharge.

2.  The applicant states he had a good service record until he accepted his discharge.  He adds that he wanted to complete his service obligation.  He was told his discharge would be changed to an honorable discharge after 2 years.

3.  The applicant provides no additional documentary evidence in support of his application.

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 for a period of 4 years on
17 March 1975.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 10 November to 12 November 1975.

4.  He served overseas in Germany from 19 May through 12 November 1976.

5.  On 26 April 1977, the applicant's company commander preferred court-martial charges against him for violation of Article 86, UCMJ, for absenting himself from his organization from 17 March to 24 April 1977.

6.  On 26 April 1977, the applicant consulted with legal counsel and 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  He acknowledged he was guilty of the charge against him or of a lesser-included offense contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Conditions Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant elected not to submit statements with his request.

   c.  A review of his request fails to show he was advised that his discharge would be upgraded to an honorable discharge 2 years after his discharge from the Army.

7.  The applicant requested excess leave (without pay and allowances) pending processing and decision on his request for discharge for the good of the service. He was placed on excess leave, effective 27 April 1977.
8.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

9.  On 5 May 1977, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to private (E-1).

10.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 12 May 1977 in accordance with Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-martial with service characterized as under other than honorable conditions.  He completed 2 years and 16 days of net active service; 5 months and 24 days of foreign service; and he had 57 days of time lost.

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

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

13.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides that a member who 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 3, 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.

	c.  Chapter 3, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was told his discharge would be upgraded to an honorable discharge after 2 years.

2.  There is no evidence in the available record and the applicant provides no evidence to show he was advised that his discharge would be upgraded after 2 years.  Thus, the applicant's contention is not supported by the evidence of record.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record.  Considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  Records show the applicant received NJP for being AWOL in 1975 and 1977, and he had a total of 57 days of time lost.  Records also show he voluntarily requested discharge for the good of the service, requested excess leave pending approval of his discharge, and he completed only 2 years and 16 days of his
4-year enlistment obligation.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110006220



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ABCMR Record of Proceedings (cont)                                         AR20110006220



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