IN THE CASE OF:	  

		BOARD DATE:  22 March 2012

		DOCKET NUMBER:  AR20110018230 


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 an honorable discharge.

2.  The applicant states:

* he went absent without leave (AWOL) for a good reason
* he loves America and honors the U.S. Army
* it has been over 30 years and he felt he was doing the right thing
* he apologizes to all his American Soldiers 

3.  The applicant provides:

* self-authored statements
* letter from the Department of Veterans Affairs (VA), dated 28 March 2011

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.  After serving prior periods of honorable service in the Regular Army, Army National Guard, and U.S. Army Reserve, the applicant enlisted in the U.S. Army Reserve Delayed Entry/Enlistment Program (DEP) on 9 January 1980.  He was discharged from the DEP and enlisted in the Regular Army on 15 January 1980. He completed training and was awarded military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while on active duty during this period of service was private/E-2.

3.  On 15 August 1980, the applicant went AWOL.  On 14 September 1980, he was dropped from Army rolls.

4.  On 15 May 1981, the applicant was returned to military control.

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 29 May 1981, shows the applicant was cleared for administrative action deemed appropriate by his commander.

6.  On 17 June 1981, charges were preferred against the applicant for being AWOL for the period 15 August 1980 on or about 15 May 1981.

7.  On 22 June 1981, the applicant consulted with legal counsel and 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  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 an under other than honorable conditions discharge.  He acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.   

8.  His chain of command unanimously recommended approval of his request with an under other than honorable conditions discharge.

9.  On 23 June 1981, the separation authority approved the applicant's request and directed that he be reduced to the rank/grade of private/E-1 and issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 7 August 1981, he was discharged under the provisions of chapter 10, Army Regulation 635-200, with a characterization of service of under other than honorable conditions.  His DA Form 2-1 (Personnel Qualification Record) shows he had 273 days of time lost.

11.  The applicant provides self-authored statements and a letter from the VA denying him benefits.

12.  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.

13.  Army Regulation 635-200, 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.

14.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his under other than honorable conditions discharge be upgraded was carefully considered and determined to be without merit.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10, Army Regulation
635-200, to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service for the period under review.

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)                                         AR20110018230



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ABCMR Record of Proceedings (cont)                                         AR20110018230



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