IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110020971 


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.

2.  The applicant states:

* he was reclassified from an infantryman to an administrative specialist and reassigned from Fort Kobbe to Fort Clayton, Panama
* the reclassification was a result of bone spurs and too much running
* his first sergeant (1SG) did not care for Soldiers with physical profiles
* he was forced to sign his chapter papers under duress and threatened with incarceration
* he went with another Soldier from Panama to Costa Rica where his car broke down they reported to the U.S. Embassy and they were returned to Panama
* the other Soldier was neither reported absent without leave (AWOL) nor issued an Article 15
* he served his country 3 years and 15 days and he was within a few months of separation, but his 1SG was prejudiced against him
* he was also unjustly accused of stealing various items, but this charge was a fabrication
* the 1SG constantly harassed him and told him if he signed the request for discharge it would be upgraded after 3 months
* he was lied to by the 1SG

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's record shows he enlisted in the Regular Army on 1 April 1980. 
He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).

3.  He served in Panama from 8 July 1980 to 14 June 1983.  He was initially assigned to Company C, 3rd Battalion, 5th Infantry, Fort Kobbe, Panama, from July to around December 1980.  He was then reassigned to Headquarters Command, Fort Clayton, Panama, from December 1980 to June 1983.

4.  On 28 December 1981, he departed his unit in an AWOL status, but he returned on 29 December 1981.

5.  On 7 May 1982, he again departed his unit in an AWOL status, but he returned on 31 May 1982.

6.  On 7 June 1982, he accepted nonjudicial (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 7 to 31 May 1982.

7.  On 14 March 1983, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on two separate occasions.

8.  On 16 March 1983, he again departed his unit in an AWOL status, but he returned to military control on 17 March 1983.

9.  On 2 May 1983, he departed his unit in an AWOL status and he was apprehended and confined by military authorities on 20 May 1983.

10.  On 21 May 1983, his command preferred court-martial charges against him for:

* one specification of being AWOL from 2 to 20 May 1983
* one specification of selling his bilingual U.S. Forces Identification Card to a Panamanian military member
* one specification of appropriating a rental car from the Army and Air Force Exchange Service and not returning it under the contract terms
* one specification of fraudulently making a false claim of lost private property

11.  On 26 May 1983, the applicant 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 of 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.

12.  In his request for discharge, he acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting a 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 understood if his discharge request was 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
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* there was no automatic upgrading or review of his discharge by any government agency
* an act of consideration by the Army Discharge Review Board (ADRB) or the ABCMR did not imply his discharge would be upgraded

13.  On 26 May 1983, his immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions character of service.

14.  On 10 June 1983, 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 reduction to the lowest enlisted grade, if applicable, and the issuance of a discharge under other than honorable conditions.

15.  The highest rank/pay grade he attained during his military service was private first class/E-3.  He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar.

16.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, on 15 June 1983 in the rank of private/E-1.  This form shows he completed 3 years, 2 months, and 15 days of active service and he had lost time from 7 to 30 May 1982 and 2 to 20 May 1983.

17.  There is no indication he petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 was charged with the commission of offenses 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.

2.  With respect to his arguments:

	a.  The Army has never had a policy wherein a discharge is upgraded within 3 or 6 months or due to the passage of time, and he was informed of this fact at the time.

	b.  Regardless of whether he was a few months shy of separation, reclassified, or reassigned between units in Panama, the charges against him were diverse and serious enough to warrant a trial by a court-martial.  He violated various provisions of the UCMJ and court-martial charges were preferred against him.  He could have elected trial by a court-martial if he believed he was innocent, but he did not do so.

	c.  There is no evidence in his records and he provided none to show his misconduct was caused by his 1SG or anyone in his chain of command.  The available evidence shows he received NJP on two occasions and he was AWOL on four separate occasions.

3.  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, he is not entitled 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 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)                                         AR20110020971



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ABCMR Record of Proceedings (cont)                                         AR20110020971



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