IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110017760 


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 discharge to a general discharge.

2.  The applicant states that prior to his discharge, he did not have any issues with his command.  He contends he followed all orders and he was never in trouble.  He was given an under other than honorable conditions discharge for going absent without leave (AWOL) but he was under the impression that he was on authorized leave and even reported on the indicated date.  He adds he was never court-martialed or given the option to appeal the discharge; he was a young man with little guidance.

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 on 9 December 1976.  He completed training and he was awarded military occupational specialty 71B (Clerk Typist).  He reenlisted on 15 November 1979 and again on 19 April 1982.

3.  On 16 July 1982, court-martial charges were preferred against him for being AWOL from 1 June 1982 to 9 July 1982.

4.  The applicant's complete discharge packet is not available for review; however, a Fort Sill (FS) Form 159 (Request for Excess Leave Without Pay and Allowances) shows he requested to be placed on excess leave status effective 16 July 1982 because he had submitted a request for 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).  He indicated he had been briefed by an attorney from the Staff Judge Advocate on the consequences of a discharge of that character.

5.  His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 24 August 1982 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "Administrative discharge conduct triable by court-martial."

6.  On 30 June 1984, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board (ADRB) determined he was properly discharged.  As a result, the ADRB denied his request for an upgrade of his discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 under other than honorable conditions is normally considered appropriate.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded has been carefully considered.

2.  His complete discharge packet is not available for review.  However, the record shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army to avoid a trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  His record of indiscipline includes a court-martial charge for AWOL.  Furthermore, his contention that he was under the impression he was on authorized leave is not supported by the evidence contained in his record.

4.  Additionally, he contends he was young with little guidance at the time.  However, the available evidence shows he had completed two terms of service and he was 23 years of age at the time he committed the offense that led to his voluntary request for discharge.  This clearly shows he had the ability to serve honorably had he chosen to do so.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who completed their military service obligation.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110017760



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ABCMR Record of Proceedings (cont)                                         AR20110017760



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