BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110020731 


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 and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* his training courses
* his letter of commendation 

2.  The applicant states:

* He was a good Soldier; he served with the 2nd Battalion, 39th Infantry, as an infantry Soldier
* He completed several training courses, including amphibious training and desert training but none is shown on his DD Form 214
* He also received a letter of appreciation for his training in Hawaii
* He was put in the stockade for 2 to 3 months and when he went to see the magistrate, he sent him back to his unit and told him he would not be court-martialed because he was absent without leave (AWOL) for only 28 days (less than 30 days)
* He realizes he made a mistake but he is older and wiser now
* He is trying hard to put his life back together and he suffers from various medical conditions

3.  The applicant did not provide any 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's record shows he enlisted in the Regular Army on 11 April 1980 and held military occupational specialty (MOS) 11B (Infantryman).  Upon completion of MOS training, he was assigned to Company C, 2nd Battalion, 39th Infantry, Fort Lewis, WA.

3.  His DA Form 2-1 (Personnel Qualification Record) shows in:

* Item 9 (Awards, Decorations and Campaigns) - Army Service Ribbon and Expert Marksmanship Qualification Badge w/Rifle and Grenade Bars
* Item 17 (Civilian Education and military Schools) shows he completed the 12-week Infantryman Course in 1980; no other training is listed

4.  His service record does not contain any certificates of training, certificate of completion, or diplomas that show he completed any additional training.

5.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for:

* 24 February 1981, being AWOL from 1 to 11 February 1981
* 26 May 1981, destroy a military sleeping bag by cutting it with a knife

6.  His records contain multiple DA Forms 4187 (Personnel Action) that show his unit reported him AWOL or confined as follows:

* 1 to 10 February 1981, AWOL
* 17 November to 10 December 1981, AWOL
* 22 December to 29 December 1981, AWOL
* 6 to 13 January 1982, AWOL
* 19 to 27 January 1982, Confined
7.  On 1 March 1982, he again departed his unit in an AWOL status and on 2 March 1982, he was dropped from the Army rolls as a deserter.  He was apprehended by civilian authorities and returned to military control on 25 May 1982.  

8.  On 9 June 1982, his command preferred court-martial charges against him for one specification of being AWOL from 1 March to 25 May 1982.

9.  On 9 June 1982, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, 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 (Personnel Separations – Enlisted Personnel), chapter 10.

10.  In his request for discharge, he indicated he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  On 14, 15, and 18 June 1982, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

12.  In an interview with his immediate commander, the applicant stated that he was AWOL because of family problems and that he desired a discharge because he no longer desired to stay in the military.  He also stated if he was returned to duty, he would go AWOL again.

13.  On 29 June 1982, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 20 July 1982.

14.  His DD Form 214 shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 10 months, and 17 days of active service and he had 153 days of lost time.  This form also shows in:

* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - the Expert Marksmanship Qualification badge with Rifle and Grenade Bars
* Item 14 (Military Education) the entry "None"

15.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that Board's 15-year statute of limitations. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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, an under other than honorable conditions discharge is normally considered appropriate.

17.  Paragraph 3-7b of Army Regulation 635-200 states 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.

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of his discharge states for item 14, enter in–service training courses; title, number of weeks, and year successfully completed during this period of service; this information is to assist the member after separation in job placement and counseling; therefore, training courses for combat skills will not be listed.  

19.  Army Regulation 600-8-22 (Military Awards) provides for the issuance of certificates of achievement.  It states that commanders may recognize periods of faithful service, acts, or achievements which do not meet the standards required for decorations by issuing to individual U.S. military personnel a DA Form 2442 (Certificate of Achievement) or a certificate of achievement of local design.  Certificates of achievement will be issued under such regulations as the local commander may prescribe.  If a locally-designed certificate of achievement is printed for use according to this regulation, it may bear reproductions of insignia. The citation on such certificates will not be worded so that the act or service performed appears to warrant the award of a decoration.  No distinguishing device is authorized for wear to indicate the receipt of a certificate of achievement.  Copies of certificates of achievement or memoranda of record stating that a certificate of achievement has been awarded and citing the service recognized will be distributed to the official military personnel file (OMPF).

DISCUSSION AND CONCLUSIONS:

1.  With respect to the character of service:

	a.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  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.

	b.  Contrary to his contention, his records reveal an extensive history of AWOL or confinement.  Additionally, he accrued a 153 days of lost time, not 29 days as he contends. 

	c.  His post-service maturity and need for medical assistance are noted; however, they are not sufficiently mitigating to grant him the requested relief.

	d.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge.

2.  With respect to the training courses, there is no evidence in his records and he provides none to show he completed any training.  But even if he did, the training he describes appears to be combat related training.  As such, there is no provision to list this type of training on the DD Form 214.

3.  With respect to the letter of commendation, there is no evidence in his records and he provides none to show he was presented with a letter of commendation.  But even if he did, commanders may recognize acts, achievements, or periods of faithful service which do not meet the standards required for decorations by issuing a DA Form 2442 (Certificate of Achievement) or a certificate of achievement of local design.  Although copies of certificates of achievement or memoranda of record stating that a certificate of achievement has been awarded are filed in the official military personnel file, there is no distinguishing device authorized for wear to indicate receipt of a certificate of achievement or commendation and there is no provision to list a certificate of achievement on the DD Form 214.

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)                                         AR20110020731



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ABCMR Record of Proceedings (cont)                                         AR20110020731



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