BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110017810 


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 discharge to general under honorable conditions.

2.  He states he married a woman who was handicapped and in a wheelchair.  His company commander and first sergeant (1SG) harassed him from January to April 1982, assigning him extra duties that kept him on post 12 to 14 hours a day.  Unbeknownst to him or his wife, she was pregnant and having morning sickness.  In April 1982, he called and told the charge of quarters he would be 10 minutes late for roll call.  When he got to formation, the 1SG had an Article 15 waiting for him for missing formation and restricted him to post knowing that his wife needed his help with things such as dressing, using the restroom and bathing.  He was able to assist her and still perform his duties as a Soldier.  His company commander and 1SG just made it harder by harassing him.  His discharge was unimportant to him since he was working and taking care of his family.  Now his wife has passed away and his son is married.  He is disabled and in need of some assistance.  While he was in the service, he was a good Soldier.  He deserves help.  Let the record show he does have an honorable discharge, Overseas Service Ribbon (OSR), and Army Good Conduct Medal (AGCM).

3.  He provides no documentary evidence in support of his request.

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.  On 11 January 1977, the applicant enlisted in the Regular Army for a period of 3 years.  

3.  On 7 November 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from the U.S. Army Military Personnel Center Personnel Assistance Point, Travis Air Force Base, CA, from 27 October to 6 November 1978.

4.  On 14 April 1979, his commander informed him he was considering punishing him under the provisions of Article 15, UCMJ, for:

* being derelict in the performance of his duties by failing to turn over to the U.S. Army Criminal Investigation Command money he received in a black market transaction
* failing to go at the time prescribed to his appointed place of duty on 3 April 1979 and again on 10 April 1979

He did not demand trial by court-martial, and his commander imposed punishment on the same date.  The appeal authority granted his appeal in part by reducing the punishment imposed by his commander.

5.  On 29 October 1979, he was discharged to immediately reenlist, which he did on 30 October 1979.  

6.  On 20 June 1980, Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, GA, issued Permanent Orders 65-2 awarding him the AGCM for the period 11 January 1977 to 10 January 1980.  On 2 July 1980, the same headquarters issued Permanent Orders 69-4, which revoked so much of Permanent Orders 65-2 pertaining to award of the AGCM to the applicant.

7.  On 1 December 1980, he accepted NJP under Article 15, UCMJ, for absenting himself from his place of duty without authority on 8 November 1980.  
8.  On 18 February 1982, his commander informed him he was considering punishing him under the provisions of Article 15, UCMJ, for absenting himself from his place of duty without authority on 17 February 1982.  He did not demand trial by court-martial, and his commander imposed punishment on 19 February 1982.  On 5 March 1982, his appeal of the punishment was denied.

9.  A DD Form 458 (Charge Sheet) shows he was charged with one specification of being AWOL from 12 April to 17 June 1982.

10.  On 17 June 1982, he signed a statement declaring he had been advised by defense counsel that the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  He waived all defenses that may have become known had his defense counsel been able to review his records, and he knowingly, willingly, and voluntarily declared he was AWOL from 12 April to 17 June 1982.  The statement shows he made the admission for administrative purposes only so he could process out of the Army and acknowledged he could be given an other than honorable discharge.

11.  On 18 June 1982, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and his rights.  

12.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In his voluntary request for discharge, he acknowledged he was guilty of the charge against him or of a lesser included offense.  He indicated he understood if his request were accepted, he could be discharged under other than honorable conditions.  He further acknowledged he understood that, as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the Veterans Administration, be deprived of his rights and benefits as a veteran under both Federal and State laws, and encounter substantial prejudice in civilian life.  He elected not to submit statement in his own behalf.  

13.  On 28 June 1982, the separation authority approved his request and directed his discharge under other than honorable conditions.  On 28 July 1982, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 4 months, and          13 days of active service with 66 days of time lost.  His DD Form 214 also shows he was awarded the OSR and AGCM.
14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 of the version in effect at the time provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and had to include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.
   
   b.  Paragraph 3-7b provides that a general discharge (GD) 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 evidence of record does not support the applicant's request for upgrade of his discharge.

2.  Presumably, his service during his initial enlistment was characterized as honorable.  Had it been characterized as less than honorable, it is unlikely he would have been allowed to reenlist.  However, a characterization of honorable for one period of service does not mitigate indiscipline leading to a less than honorable characterization of service during a subsequent period of service.  

3.  Although his DD Form 214 shows he was awarded the AGCM, orders in his record show the orders authorizing this award were revoked.  The action to revoke his AGCM would have been justified in light of the NJP he received during his first enlistment.  Regardless of this action, as with characterization of an earlier period of service, having received an AGCM does not mitigate indiscipline during a subsequent period of service.  

4.  The record does not show and he has not provided evidence showing he was harassed by his company commander and 1SG.

5.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The available evidence shows he was charged with and admitted he was guilty of being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

6.  His record shows that, after he reenlisted, he received NJP on two occasions and admitted he was guilty of being AWOL.  Based on this record of indiscipline, his service subsequent to his reenlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

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)                                         AR20110017810





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ABCMR Record of Proceedings (cont)                                         AR20110017810



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