IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110013422 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* His discharge is unfair because he only had 2 more weeks to finish his enlistment
* He feels he served honorably; he did not desert his country
* He currently has medical conditions and he receives service-connected disability compensation
* His discharge was caused by poor leadership
* He received nonjnudicial punishment (NJP), but it was not related to the charges against him
* He was told his discharge would be changed after 6 months

3.  The applicant did not provide any evidence.

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 record shows he enlisted in the Regular Army for 3 years on 27 December 1979 and he held military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  He was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Army Service Ribbon.  He was assigned to the 39th Engineer Battalion, Fort Dix, NJ.

4.  His records show he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 4 February 1980, for being disrespectful in language towards a superior noncommissioned officer (NCO)
* 4 June 1980, for being disrespectful in deportment towards an NCO
* 1 July 1980 and on 7 August 1981, for failing to go at the time prescribed to his appointed place of duty
* 22 February 1982, for resisting apprehension by a military policeman; stealing property from the Post Exchange; and assaulting a Post Exchange detective

5.  On 7 December 1982, his command preferred court-martial charges against him for:

* two specifications of being disrespectful in language towards an NCO
* one specification of assaulting an NCO
* one specification of disobeying a lawful order
* one specification of failing to go at the time prescribed to his appointed place of duty
* one specification of leaving his appointed place of duty without authority 

6.  On 11 January 1983, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

7.  In his request for discharge, he indicated he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  He submitted a statement in connection with his voluntary request for discharge wherein he stated that he may not have been the Soldier the Army desired him to be, but he performed to the best of his ability.  

9.  On 18 January 1983, his immediate commander stated that the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation.  The immediate commander recommended an under other than honorable conditions discharge.

10.  On 20 January 1983, his intermediate commander also recommended an under other than honorable conditions discharge.

11.  On 21 January 1983, his senior commander recommended disapproval of the discharge action and recommended that the applicant's case be disposed of through a court-martial.

12.  On 24 January 1983, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that the applicant be reduced to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 27 January 1983.

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 3 years, 1 month, and 1 day of active service.

14.  There is no indication he petitioned the Army Discharge Review Board within that board's 15-year statute of limitations.

15.  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.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  With respect to his arguments:

	a.  The Army has never had a policy wherein a discharge is upgraded within 
6 months or due to the passage of time.



	b.  Regardless whether he was within 2 weeks of separation, he violated various provisions of the UCMJ and court-martial charges were preferred against him.  He could have elected trial by a court-martial if he believed he was innocent; but he did not do so.

	c.  There is no evidence in his records and he provided none to show his misconduct was caused by poor leadership.  The available evidence shows he received NJP on five separate instances throughout his military service.

3.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge.

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)                                         AR20110013422



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ABCMR Record of Proceedings (cont)                                         AR20110013422



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