IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110015933 


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.

2.  The applicant states his military records show he was a good Soldier who made a mistake.

3.  The applicant provides no additional 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 enlisted in the Regular Army and entered active duty on 
27 February 1979.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewman).  The highest grade/rank he held was specialist four/E-4.

3.  He served in a variety of stateside or overseas assignment, including Baumholder, Germany from 10 January 1983 to 6 January 1985 and Fort Carson, CO from 13 February 1985 to 11 December 1985.  

4.  His records show he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), on 30 July 1985, for being absent from his unit without authority from 16 to 17 July 1985.

5.  His records contain three DA Forms 4187 (Personnel Action) which show his duty status as follows:

* Present for duty (PDY) to absent without leave (AWOL), on 2 August 1985
* AWOL to dropped from rolls (DFR), on 1 September 1985
* DFR to PDY, on 22 October 1985

6.  On 23 October 1985, he signed a medical evaluation letter indicating he did not desire to undergo a medical examination.

7.  On 28 October 1985, he signed a statement of admission of AWOL for administrative purposes after having been advised by counsel that the government had not yet received the necessary documentation or records necessary to obtain a trail by court-martial.  He was also advised that counsel could not fully advise him without these records.  He waived all defenses that might have been available to him if his counsel had been permitted to view the documents.  He knowingly, willingly, and voluntarily declared he was AWOL from 2 August 1985 to 22 October 1985.  He made this admission for administrative purposes in order to process out of the Army.  He acknowledged that he was aware he might receive an under conditions other than honorable discharge, and that he understood and had been counseled about all of the legal and social ramifications of that type of discharge.

8.  On 28 October 1985, he was charged with one specification of AWOL from 
2 August 1985 to 22 October 1985.

9.  On 29 October 1985, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a under 

conditions other than honorable discharge, and the procedure and rights that were available to him.  Subsequent to receiving this legal counsel, he, without coercion, voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service.

10.  In this request for discharge he indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  On 7 November 1985, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade prior to separation.  

12.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 December 1985 in the rank/grade of private/E-1 for the good of the service with a character of service of under other than honorable conditions.  This form further confirms he completed 6 years, 
6 months, and 25 days of creditable active service with 49 days of lost time due to AWOL. 

13.  There is no indication he applied to the Army Discharge Review Board to request an upgrade of his discharge within the boards 15-year statute of limitations. 

14.  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.


15.  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.

16.  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 separation authority listed on his DD Form 214 is Army Regulation 
635-200, chapter 10.  This entry is used when a service member voluntary requests discharge in lieu of trial by court-martial.  Evidence shows that having been advised by legal counsel, he voluntarily requested discharge for the good of the service.  Additionally, he admitted to being AWOL.  

2.  There is no evidence of record and the applicant has not provided evidence to show he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

3.  Based on the foregoing, there is no ground for granting his 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)                                         AR20110015933





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ABCMR Record of Proceedings (cont)                                         AR20110015933



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