BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110012414 


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 his discharge under other than honorable conditions be upgraded to general.

2.  The applicant states:

* An upgrade is merited by his overall record
* He was not discharged in lieu of trial by court-martial 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service personnel records

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 12 November 1976 for a period of 3 years.  He completed his training and was awarded military occupational specialty 64C (motor transport operator).     

3.  On 9 August 1977, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana. 

4.  On 29 November 1978, NJP was imposed against the applicant for being absent without leave (AWOL) from 20 November 1978 to 27 November 1978 and being derelict in the performance of his duties. 

5.  He went AWOL on 12 April 1979 and returned to military control on 8 January 1980.  On 10 January 1980, charges were preferred against the applicant for the AWOL period.

6.  On 14 January 1980, he consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated:

* He was 22 years of age and had only completed the 10th grade
* He joined the Army because it was hard to get a job and he had gotten into trouble with the law
* He wanted to drive trucks not a tractor trailer
* He didn't like being treated like a second hand person 

7.  On 4 February 1980, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

8.  He was discharged under other than honorable conditions for the good of the service on 11 March 1980 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 2 years, 6 months, and 16 days of creditable active service and 289 days of lost time.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for 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 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention he was not discharged in lieu of trial by court-martial.  The governing regulation states chapter 10 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.  Evidence shows he voluntarily submitted a request for discharge for the good of the service under the provisions of chapter 10 on 14 January 1980.   

2.  He contends an upgrade is merited by his overall record.  However, his record of service included 2 NJPs and 289 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
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)                                         AR20110012414



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ABCMR Record of Proceedings (cont)                                         AR20110012414



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