IN THE CASE OF:	  

		BOARD DATE:	    6 March 2012

		DOCKET NUMBER:  AR20110016360 


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 honorable.

2.  The applicant states he learned a lot in the Army about how to lead and motivate people.  He has applied this knowledge and experience as a civilian in order to be a better employee and worker.  He saved another Soldier's life during basic training and he received two letters of commendation.  He knows he made a critical mistake by being absent without leave (AWOL), but he believes the positive aspects of his active duty service warrant an upgrade.

3.  The applicant provides copies of:

* a letter of commendation for performance on a advanced physical fitness test
* a letter of commendation for outstanding contributions during training exercise Black Furry III
* a 1983 high school equivalency certificate
* his DD Form 214 (Certificate of Release or Discharge from Active Duty

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 6 July 1979.  He completed training as an infantryman and was stationed in Panama in April 1980.  He transferred to Fort Campbell, KY, in October 1981.

3.  The applicant was AWOL from 20 April to 17 August 1982.  When charges were preferred for that offense, the applicant consulted with counsel and 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.  He indicated he understood the elements of the charges against him and admitted he was guilty of at least one offense or of a lesser-included offense for which a punitive discharge was authorized.  He also acknowledged he would receive a discharge under other than honorable conditions.  He understood he would be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Department of Veterans Affairs.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

4.  The records are incomplete.  There are indications, including the commanding officer's endorsement of the applicant's request for discharge in lieu of trial by court-martial, that the applicant received five nonjudicial punishments under Article 15, Uniform Code of Military Justice.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was advanced to pay grades E-2 and E-3 multiple times each.

5.  The chain of command endorsed the applicant's request for discharge.  The general court-martial convening authority approved the request and directed his discharge under other than honorable conditions and reduction to the rank and pay grade of private/E-1.

6.  On 10 September 1982, the applicant was discharged accordingly.  His DD Form 214 shows he completed 2 years, 9 months, and 23 days of creditable active duty service, including 21 days of excess leave.  His awards included the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Medal with Rifle and Grenade Bars, and Sharpshooter Marksmanship Qualification Badge with Missile Bar.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge during the 15-year period of eligibility.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.  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 believes the positive aspects of his active duty service warrant an upgrade of his discharge.  He saved another Soldier's life during basic training and he received two letters of commendation.  He learned how to lead and motivate people in the Army.  He has applied this knowledge and experience as a civilian in order to be a better employee and worker.

2.  The applicant's request for discharge under the provisions of chapter 10, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid the court-martial and punitive discharge he might have received.  Thus, his misconduct and his actions to avoid the consequences became the determining factors in the characterization of his service.

3.  The applicant provided no evidence concerning his post-service experiences.  There is nothing in his record about any life-saving actions while in basic training.  The letters of commendation are noted, but these taken together with his overall record of service are outweighed by his misconduct and request for discharge in order to avoid trial by court martial.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

DISCUSSION AND CONCLUSIONS:

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 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)                                         AR20110016360



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ABCMR Record of Proceedings (cont)                                         AR20110016360



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