IN THE CASE OF: 

		BOARD DATE:  23 February 2012

		DOCKET NUMBER:  AR20110016612 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  He states:

	a.  at the age of 22 he did not have the life experience to understand the long range affects of accepting the option to leave the service after 1 year and
2 months.

	b.  He was denied permission to attend the funeral of his aunt's father, who was a strong grandfather figure to him.  He went absent without leave (AWOL).  When he returned he was simply asked if he wanted to stay in the Army or go home.  There was no mention of losing any military benefits.  He accepted the offer to go home to his aunt and be with his family.  If he had had any counseling for his grief to help him make the right decision, he would have chosen to stay in the service.

	c.  He believes the military had a responsibility to counsel him and they did not.  He was pushed through the process.

	d.  Today he is finishing his degree to be a teacher.  He is asking that his discharge be upgraded to honorable. 

3.  The applicant provides a copy of his DD Form 214.


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 on 2 February 1982.  He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 
5 (Oversea Service) he served in the Sinai from 6 September 1982 through
18 February 1983.

4.  On 27 July 1983, charges were preferred against the applicant for being AWOL from 19 April to 26 July 1983 (98 days).

5.  On 29 July 1983, the applicant 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 Uniform Code of Military Justice (UCMJ), the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he indicated 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 were 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 


(VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The applicant submitted no statements in his own behalf.  The unit commander's endorsement to the applicant's request for discharge describes the situation as starting with personal problems.  It makes no mention of any aunt or of any death in his family.

8.  On 13 September 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, and directed he receive a UOTHC discharge.  On 3 October 1983, the applicant was discharged.  He completed 1 year, 4 months, and 25 days of creditable active military service with 98 days of time lost.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

11.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC 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 record contains no information about a death in his family and there is no record that he requested any additional counseling.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  His service was characterized by the nature of his offense and the circumstances of this separation.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge to an honorable or a general 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 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)                                         AR20100015867



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016612



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1