IN THE CASE OF:	  

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110023864 


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 his discharge be upgraded to an honorable discharge (HD).

2.  The applicant states that clemency is warranted because it is an injustice to continue suffering adverse consequences for a bad discharge.  He also states that he was young and at the time going through marital problems.  He further states that his record of absent without leave (AWOL) indicates only minor or isolated offenses compared to the years of service, awards, and decorations he received.

3.  The applicant provides a one-page self-authored letter, a letter from his pastor, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 16 October 1979.  He completed basic combat, advanced individual training, and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  Records show that the applicant was counseled for several acts of indiscipline on the following dates:

a. 26 January 1984, 25 April 1984, 8 September 1984, and 
5 November 1984, for missing formation; and

b. 18 June 1985, for failure to repair.

4.  Records show that the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

   a.  12 April 1985, for failing to go to his appointed place of duty;
   
   b.  6 May 1985, for being AWOL during the period 17 April 1985 through 
23 April 1985; and
   
c. 18 July 1985, for being AWOL during the period 24 June 1985 through
25 June 1985.

5.  On 5 September 1985, he departed his unit in an AWOL status and he was dropped from the Army rolls on 5 October 1985.  On 7 October 1985 he returned to duty.

6.  On 7 October 1985, charges were preferred against the applicant for being AWOL during the period 5 September 1985 through 7 October 1985.

7.  On 21 October 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an Under Other Than Honorable Conditions (UOTHC) discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.


8.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 28 October 1985, the separation authority approved the applicant’s request for discharge and directed that he receive a UOTHC discharge.  On 
20 November 1985, the applicant was discharged accordingly.

10.  The DD Form 214 he was issued confirms he completed 5 years, 11 months, and 25 days of total creditable active military service with 38 days of lost time.  

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

12.  The applicant provided a one-page letter from his pastor that explained he is an elder in the church and has been a member in good standing for 10 years.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge (GD) 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's request that his discharge be upgraded to an HD was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  During the period of service under review the applicant was counseled on several occasions for acts of indiscipline and repeated acts of AWOL.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

4.  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 38 days of AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a GD or HD.

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)                                         AR20110023864





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ABCMR Record of Proceedings (cont)                                         AR20110023864



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