IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110014877 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 

2.  The applicant states his discharge should be upgraded because his 25 December 1978 discharge from the Army National Guard (ARNG) was honorable.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and NGB Form 22 (National Guard Bureau, Report of Separation and Record of Service) 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 record shows the applicant enlisted in the Texas Army National Guard (TXARNG) for 6 years on 27 April 1977, and served for 1 year, 7 months, and 29 days until 25 December 1978, at which time he was honorably discharge in order to transfer to the Oklahoma Army National Guard (OKARNG).  On 26 December 1978, he enlisted in the OKARNG for 5 years.  On 10 September 1979, he was discharged from the OKARNG with a general, under honorable conditions discharge (GD) and assigned to the United States Army Reserve (USAR) based on unsatisfactory participation.  

3.  Headquarters, Fifth United States Army, Fort Sam Houston, Texas, dated 
24 July 1979, ordered the applicant to active duty for 20 months and 24 days for the purpose of performing involuntary active duty based on his unsatisfactory participation in the OKARNG.  

4.  The applicant failed to report for active duty and on 11 September 1979 was placed in an absent without leave (AWOL) status.  He remained away for 75 days until returning to military control at the Personnel Control Facility, Fort Sill, Oklahoma on 24 November 1979.   

5.  On 10 October 1979, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 11 September through 25 November 1979.  

6.  On 18 December 1979, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

8.  On 11 January 1980, the separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 24 January 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 months of creditable active military service and accrued 75 days of time lost due to AWOL during the period covered by the DD form 214. 

9.  There is no evidence indicating the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15 year statute of limitations.  

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

	a.  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.

	b.  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.  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's request for an upgrade of his discharge based on having received an HD from the TXARNG has been carefully considered.  However, there is insufficient evidence to support this claim.



2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service 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.  

3.  The evidence of record further confirms the applicant was ordered to involuntary active duty based on his unsatisfactory participation in the OKARNG and failed to report to perform his active duty service.  It further shows he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge and that he admitted guilt to an offense that authorized the imposition of a punitive discharge in his request for discharge.  Given the voluntary nature of his discharge request and his record of unsatisfactory participation in the OKARNG, his argument that his discharge should be upgraded based on an honorable discharge he received for a short period of service in the TXARNG is not sufficiently mitigating to support granting the requested relief.  

4.  The under other than honorable conditions discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  

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)                                         AR20110014877



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ABCMR Record of Proceedings (cont)                                         AR20110014877



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