IN THE CASE OF:	  

		BOARD DATE:  21 February 2012

		DOCKET NUMBER:  AR20110017921 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he was told after he checked in late that either he sign or go to jail which placed him in duress.  He claims he did not want out and he had a difficult time as a result of the death of his girlfriend’s grandfather.  He states he told them that he would have taken a reduction in rank or confinement to post.  He states he even told his commander he would do counseling to help him get back on track.

3.  The applicant provides no documentary evidence in support of his application.

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 5 September 1990.  He was trained in and awarded military occupational specialty (MOS) 31K (Radio Operator) and later reclassified in MOS 31D (Mobile Subscriber Equipment XMSN Systems Operator).  He was advanced to private first class (PFC)/E-3 on 1 August 1991, which was the highest rank/grade he attained while serving on active duty.  His record documents no acts of valor.

3.  On 26 January 1993, the applicant departed absent without leave (AWOL) from his unit at Fort Bragg, NC and on 24 February 1993, he was dropped from the rolls (DFR) of his organization.  On 27 February 1993, he returned to military control at the Personnel Control Facility (PCF), Fort Knox, KY.

4.  On 4 March 1993, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 26 January 1993 to on or about 27 February 1993.

5.  On 4 March 1993, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  In making this request, he confirmed that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.  He also confirmed he was making the request of his own free will and he had not been subjected to coercion by any person.  He elected not to make a statement in his own behalf.

6.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

7.  On 8 April 1993, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge and reduction to private (PV1)/E-1.  On 29 April 1993, the applicant was discharged accordingly.
8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he completed 2 years, 
6 months, and 24 days of creditable active service with 32 days of time lost due to AWOL.

9.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides in:

	a.  Chapter 10 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 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 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 request for an upgrade of his discharge because he was under duress at the time of his discharge processing and because he desired to continue to serve has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  


It also shows that after consulting with defense counsel, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He could have elected to submit a statement voicing his current contentions; however, he elected not to do so.

3.  The evidence of record further confirms he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  In his request for discharge he admitted guilt to an offense that authorized the imposition of a punitive discharge.  Given the voluntary nature of his discharge request and his confirmation therein that he had no desire to perform further military service and that he was not coerced into requesting discharge, his argument that he was under duress at the time is not sufficiently credible to support changing the characterization of his service.

4.  The under other than honorable conditions discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.

5.  In view of the foregoing, there is no basis for granting his 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)                                         AR20110017921



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ABCMR Record of Proceedings (cont)                                         AR20110017921



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