IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110024780 


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 under other than honorable conditions be upgraded.

2.  The applicant states, in effect, he was led to believe that after 6 months his discharge could be upgraded.  He asks the Board to take into consideration he is currently employed with Towson University in Maryland as a supervisor and he has been there for the last 8 years.  He credits his longevity to his brief period of military service.  Further, he is a humble family man and he would like his record to reflect something better.  He regrets his past and he is very productive now.

3.  The applicant provides 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.  His records show he enlisted in the Regular Army on 13 May 1980.  After completion of training, he was awarded military occupational specialty 11B (Infantryman).

3.  He accepted nonjudicial punishment (NJP) for failing to go to his appointed place of duty at the prescribed time on two occasions and for being incapacitated for the performance of his duties.

4.  On 1 October 1981, court-martial charges were preferred against him for:

	a.  breaking restriction;

   b.  being absent without leave (AWOL); and
   
   c.  disobeying the lawful order of a commissioned officer (three specifications).

5.  On 1 October 1981, he was placed in pretrial confinement.

6.  On 16 October 1981, after consulting with legal counsel, he voluntarily requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Federal and State veterans benefits.  He elected to submit a statement on his own behalf, but there is no statement contained in the available record.

7.  The available records show the applicant's immediate commander, battalion commander, and brigade commander recommended that the applicant be discharged for the good of the service in lieu of trial by court-martial and recommended the issuance of an under other than honorable conditions discharge.

8.  On 29 October 1981, the appropriate authority directed that the applicant be reduced to pay grade E-1 and approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge.  On 6 November 1981, he was discharged accordingly.

9.  His DD Form 214 shows he completed 1 year, 5 months, and 15 days of total active service.

10.  The highest grade he attained during his period of service was private/E-2.

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

12.  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 under the Uniform Code of Military Justice (UCMJ) 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 under other than honorable conditions is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

	a.  Paragraph 3-7a provides that 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 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.

13.  Under the UCMJ, the maximum punishment allowed for disobeying the lawful order of a commissioned officer is 5 years confinement and a dishonorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was led to believe it would be upgraded within 6 months of his discharge.

2.  The evidence of record confirms he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  His record of service shows a pattern of misconduct which included breaking restriction, lost time, and failing to follow the lawful orders of his superiors.  Based on his record of indiscipline his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge.  Each case is decided on its own merits when an applicant requests a change in the characterization of service.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20110024780



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ABCMR Record of Proceedings (cont)                                         AR20110024780



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