BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110017593 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he was informed his discharge was a chapter 13 for the good of the service
* he was never court-martialed while he was in the Army
* he joined the service due to the Iranian Hostage Affair thinking the United States was going to war
* he was an excellent Soldier when he was in basic training
* he received a plaque for being a hand grenade expert
* he was absent without leave (AWOL) for 5 days because he was left behind by his unit when it transferred from Fort Campbell, KY to North Carolina
* he called his first sergeant and he was told not to worry
* when he returned he was weeks away from his advancement to the rank/grade of specialist four (SP4)/E-4 and transfer to Germany
* he was busted to private (PV1)/E-1 and his transfer was denied
* he joined the Army to fight for his country and ended up fighting with a mop
* he knows his statement is not in his record, but he wants his side to be known

3.  The applicant provides a copy of 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 on 16 April 1980 as a PV1/E-1. He completed training as a general construction equipment operator.  He was advanced to private (PV2)/E-2 on 16 October 1980 and to private first class (PFC)/E-3 on 1 March 1981.

3.  The applicant went AWOL on 7 July 1980 and he remained absent until he surrendered to military authorities on 12 July 1980.

4.  On 17 July 1980, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 12 July 1980.

5.  On 20 October 1981, the applicant was notified that court-martial charges were pending against him for being AWOL from 21 July 1981 until 13 October 1981.  He acknowledged receipt of the notification on 21 October 1981.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he acknowledged he understood that:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

7.  On 6 November 1981, the appropriate authority approved the applicant's request for voluntary discharge and directed the issuance of an under other than honorable conditions discharge.  On 7 December 1981, the applicant was discharged accordingly under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He completed 1 year, 4 months, and 24 days of creditable active service with
89 days of time lost due to AWOL.

8.  On 29 October 1984, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board (ADRB) determined that he was properly and equitably discharged.  Accordingly, the ADRB denied the applicant’s petition for an upgrade of his discharge.

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

	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.  Chapter 13 provides for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

	c.  in paragraph 3-7a, 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.

	d.  in paragraph 3-7b, 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 contentions have been noted and his supporting evidence has been considered.

2.  His records show he went AWOL twice when he was in the Army.  He was AWOL from 7 July 1980 through 12 July 1980 and from 21 July 1981 through 13 October 1981.  Rather than stand trial by court-martial he voluntarily requested to be discharged from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The type of discharge he received appropriately reflects his overall record of service.

3.  Although the applicant contends he was informed his discharge would be a chapter 13, there is no evidence that chapter 13 separation proceedings were initiated.  His record clearly shows that subsequent to court-martial charges being preferred against him, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, for which he was appropriately discharged.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20110017593



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ABCMR Record of Proceedings (cont)                                         AR20110017593



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