IN THE CASE OF:	  

		BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110020925 


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 a general discharge under honorable conditions.

2.  The applicant states he was young and did not really understand the military.  He simply made a mistake, he did not understand the consequences of his actions, and would like his discharge upgraded so he may better provide for his family.

3.  The applicant provides no additional documentary evidence in support of his request.

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 enlisted in the Regular Army on 21 September 1978 for a period of 4 years.  At the time he was 18 years of age.  Upon completion of training, he was awarded military occupational specialty (MOS) 63H (Automotive Repairman).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 19 June and 17 December 1979, for failing to go at the time prescribed to his appointed place of duty on 5 June 1979, and on 11 and 12 December 1979.

4.  Headquarters, 36th Engineer Group (Combat), Fort Benning, Georgia, Special Court-Martial Order Number 12, dated 24 June 1980, shows the applicant was convicted of four specifications of being absent without leave (AWOL) from 11 to 
18 March 1980, 22 to 24 March 1980, 7 to 9 April 1980, and 21 to 30 April 1980.

	a.  He was sentenced to confinement at hard labor for 2 months and a forfeiture of $299.00 pay for 2 months.

	b.  On 24 June 1980, the convening authority approved the sentence and ordered it to be duly executed.

5.  Headquarters, 1st Battalion, U.S. Army Retraining Brigade, Fort Riley, Kansas, Special Court-Martial Order Number 205, dated 30 July 1980, shows the unexecuted portion of the approved sentence was suspended until 10 October 1980, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

6.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) relating to charges subsequent to his special court-martial.

7.  On 19 November 1980, the applicant consulted with legal counsel and he voluntarily requested 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 based on the charge of being AWOL in excess of 30 days.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge and he acknowledged that he was guilty of the charge against him, or a lesser included offense therein.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Discharge.

	b.  He was also advised that he could submit any statements he desired in his own behalf and he elected to submit a statement with his request.

	c.  In his statement, the applicant indicated that after he left the retraining brigade at Fort Riley, Kansas, he was placed on leave en route to Fort Ord, California.  After some time, he discovered he had exceeded the period of his authorized leave and that he had failed to report to Fort Ord on the scheduled reporting date.  He also stated he was unable to locate an emergency contact phone number to report on his situation, so he just gave up.  He subsequently turned himself in to military authorities.

	d.  The applicant and his counsel placed their signatures on the document.

8.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge with an under other than honorable conditions discharge.

9.  On 17 February 1981, the separation authority approved the applicant's request for discharge and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 February 1981 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 2 years, 1 month, and 7 days of active service this period.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded because he was young, did not understand the military, and made a mistake.

	a.  Considering the applicant satisfactorily completed training, was awarded MOS 63H, and served approximately nine and one-half blemish-free months, his contention that he was young and naive about military service is not supported by the evidence of record.

	b.  Records show the applicant:

* accepted NJP on two occasions for failing to go at the time prescribed to his appointed place of duty
* was convicted at a special court-martial of four specifications of being AWOL from his unit
* was charged under the UCMJ, Article 86, for a period of AWOL in excess of 30 days

	c.  Thus, the evidence of record refutes the applicant's contention that he simply made a (one) mistake.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service.  Considering all the facts of the case, the characterization of service was appropriate and equitable.
3.  The applicant elected to request discharge in lieu of being court-martialed and he completed only about one-half of his 4-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general discharge.  

4.  In view of the foregoing, there is no basis for granting the 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)                                         AR20110020925



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ABCMR Record of Proceedings (cont)                                         AR20110020925



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