IN THE CASE OF:  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110012595 


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 conditions other than honorable be upgraded to an honorable discharge.

2.  The applicant states:

* he was told at the time of his discharge that he could upgrade later.
* he was unaware that he should have requested an upgrade in 3 years
* he tried to be a good Soldier while in the Army
* he tried to better himself but started to have family problems
* he realizes now that he should have handled things differently

3.  He provides no additional documentation. 

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's records show he enlisted in the Regular Army on 
23 September 1976.  His record shows he completed basic combat and advanced individual training and was awarded military occupational specialty 
63J (Quartermaster).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  A DD Form 458 (Charge Sheet), dated 18 November 1980, shows Summary Court-Martial charges were preferred against the applicant for being AWOL from 3 September 1980 through 6 November 1980 (64 days).

4.  On 20 November 1980, the applicant consulted with counsel and 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 available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  Additionally, in his request for discharge, the applicant stated, "that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

7.  On 3 December 1980, the applicant's unit commander recommended approval of the applicant's request for discharge.  The commander indicated in his opinion, the applicant has “no” motivation for continued service, and will not respond to either counseling or rehabilitation.  On 4 December 1980, the battalion commander concurred with the unit commander's recommendation.

8.  On 8 December 1980, the separation authority approved the applicant's request for discharge and directed his discharge under other than honorable conditions. 

9.  On 30 January 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 4 years, 2 months, and 5 days of creditable active service with 64 days lost time due to AWOL.
10.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred.  At the time, a discharge under conditions other than honorable was 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 requests were carefully considered and determined to lack merit. 

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  Discharges under the provisions of this chapter are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The available evidence shows the applicant’s commander indicated that he had no motivation for continued service, and will not respond to either counseling or rehabilitation.   In his request for discharge, the applicant voluntarily declined further rehabilitation and he was aware of the consequences of any action which would demonstrate an inability or refusal to participate in, cooperate in, or successfully complete.

4.  The applicant's record shows he was AWOL for 64 days.  Based on this fact, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or an honorable discharge.  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)                                         AR20110012595





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ABCMR Record of Proceedings (cont)                                         AR20110012595



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