IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110019032 


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 discharge under other than honorable conditions (UOTHC) to a general discharge (GD) under honorable conditions.

2.  The applicant states he was experiencing extensive family problems involving divorce, he had broken his ankle, and his lieutenant was giving him a hard time.

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 served in the Regular Army from 11 June 1975 through 11 May 1978 when he was discharged UOTHC in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

3.  The applicant's official military personnel file contains two records of nonjudicial punishment under Article 15, Uniform Code of Military Justice, for:

* failing to repair and being derelict in the performance of duty on 6 May 1977
* being absent without leave (AWOL) from 29 January 1977 to 11 March 1977

4.  The applicant's records also contain numerous letters of indebtedness and a bar to reenlistment.

5.  On 26 April 1978, court-martial charges were preferred against the applicant for being AWOL from 5 December 1977 to 22 April 1978.

6.  On 26 April 1978, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In so doing, he acknowledged he was guilty of the charges against him or of lesser-included offenses and he could be issued a discharge UOTHC and be deprived of many or all Army benefits.  He declined to submit a statement in his own behalf.

7.  On 8 May 1978, the approving authority accepted the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 
635-200, chapter 10, with a UOTHC character of service.

8.  There is no record to show the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

10.  Paragraph 3-7b of Army Regulation 635-200 states that a 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.  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 requests a discharge upgrade to GD under honorable conditions.

2.  The applicant's separation packet shows he was discharged under the provisions of chapter 10, Army Regulation 635-200.  That means court-martial charges were preferred against him and after consulting with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial which could have authorized the imposition of a bad conduct or dishonorable discharge if convicted of the charge(s) against him.

3.  The applicant's record of service and the lengthy AWOL for which court-martial charges were preferred are such that a discharge upgrade is inappropriate.

4.  The applicant's request for a chapter 10 discharge – even after appropriate and proper consultation with a military lawyer – indicates he wished to avoid the court-martial and punitive discharge he might have received.

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 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)                                         AR20110019032



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ABCMR Record of Proceedings (cont)                                         AR20110019032



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