IN THE CASE OF:	  

		BOARD DATE:	      17 April 2012

		DOCKET NUMBER:  AR20110019569 


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.

2.  The applicant states:

* He was honorably discharged at Fort Lewis, WA after completing 4 years of his first enlistment
* He was young and dumb at that time
* His wife and family were having a hard time
* His life was in danger as a result having an affair with another man’s wife

3.  The applicant provides a self-authored statement.

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 was born on 19 April 1955.  On 20 October 1976, at the age of 21 years, 9 month, and 2 days of age, he enlisted in the Regular Army (RA) for a period of 4 years.  He completed training and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).

3.  On 30 July 1980, he was honorably discharged for the purpose of immediate reenlistment.  On 31 July 1980, he reenlisted for a period of 3 years.  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

4.  The available records indicate the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the following offenses:

* On December 1980, for disobeying a lawful order
* On 29 April 1981, for being absent from place of duty

5.  On 8 September 1983, charges were preferred against the applicant for being absent without leave (AWOL).

6.  On 9 September 1983, the applicant consulted with counsel and submitted a voluntary 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.  The applicant was advised of the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable discharge, and of the procedures and rights that were available to him.

7.  In the applicant's request for discharge, he indicated he understood that by requesting discharge, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 23 September 1983, the discharge authority approved the applicant's request under the provisions of Army Regulation 635-200, chapter 10, and directed his discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was accordingly discharged on 18 October 1983.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he completed 4 years, 9 months, and 23 days of creditable active service with 797 days of time lost due to AWOL.

10.  The applicant provided a self-authored statement indicating he was young and dumb at that time of this incident.  His wife and family were having a hard time and he left Fort Knox, KY for the family.  He also states his life was in danger as a result of having an affair with another man’s wife.  He is now 56 years old.

11.  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.

12.  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.

13.  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. 

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  Prior to 1 October 1979, a DD Form 214 was issued to all personnel at time of retirement, discharge, or release from the Active Army.  However, effective
1 October 1979, a DD Form 214 will not be prepared for enlisted members discharged for immediate reenlistment in the RA.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his discharge was carefully considered and determined to lack sufficient evidence to grant relief.

2.  Although it is apparent that he was honorably discharged in July 1980 for the purpose of immediate reenlistment, there was no provision for issuing him a separate DD Form 214 for his initial honorable period of service.  However, notwithstanding the applicant’s contention that he was honorably discharged, the applicant’s record clearly shows he was discharged under other than honorable conditions during his last period of service.

3.  Records show the applicant was over 25 years of age at the time of his first NJP offense.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  Such discharges are voluntary requests for discharge 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.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, which includes 797 days of time lost due to being AWOL, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

6.  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)                                         AR20110019569



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ABCMR Record of Proceedings (cont)                                         AR20110019569



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