IN THE CASE OF:	  

		BOARD DATE:  10 April 2012

		DOCKET NUMBER:  AR20110020342 


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.  He states the Department of Veterans Affairs (VA) determined his service from 28 August 1978 through 22 May 1984 was honorable for VA benefits purposes.

3.  He provides no additional documentary evidence in support of this 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.  His military records show he enlisted in the Regular Army on 28 August 1978.  He served continuously through reenlistments on 23 May 1980 (period of 4 years) and 29 February 1984 (period of 6 years).  The highest rank he held was staff sergeant/E-6.

3.  He accepted nonjudicial punishment on 31 January 1989 for:

* wrongfully operating a privately owned vehicle not registered with the registrar or other issuing authority recognized by the U.S. Army Europe
* failing to go at the time prescribed to his appointed place of duty on three dates
* breaking quarters after being placed on quarters by a medical doctor

4.  On 8 November 1989, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 1 May to 8 November 1989 (191 days).

5.  On 9 November 1989, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications that were attached to his request.  He acknowledged he understood the elements of the offenses(s) charged and was guilty of the charge(s) against him or of a lesser-included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood if his discharge request were approved he might be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effects of an under other than honorable conditions discharge and that as a result of the issuance of such a discharge he would be deprived of many benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 29 November 1989, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an under other than honorable conditions discharge.

7.  On 14 December 1989, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 10 years, 9 months, and 9 days of active service with 191 days time lost.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, in effect at the time, stated 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 must have included the individual's admission of guilt.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  In order to reenlist, his service would have been characterized as honorable.  While the VA may have told him his first service from 28 August 1978 to a date in 1984 was considered honorable for VA benefit purposes, this in no way affects the characterization of service of his final period of enlistment, in which his DD Form 214 shows was characterized as under other than honorable conditions.

2.  He received NJP for wrongfully operating a privately owned vehicle, failing to go at the time prescribed to his appointed place of duty on three occasions, and breaking quarters.  He was charged with being AWOL for a period of 191 days.  Therefore, his service was unsatisfactory.

3.  He voluntarily 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 doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  In view of the foregoing, there is an insufficient basis upon which to upgrade his discharge to an honorable or a general discharge.

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)                                         AR20110020342



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ABCMR Record of Proceedings (cont)                                         AR20110020342



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