BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110024894 


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 discharge under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states he was told his discharge could be upgraded to honorable after 2 years if he did not have a felony conviction within that time.  He moved around a lot, got caught up with working, and had no stable address.

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 military records show he enlisted in the Regular Army (RA) in pay grade E-1 on 10 August 1981 for 4 years.  He completed training and was awarded military occupational specialty 63W (Wheel Vehicle Repairer).  He served in Germany from 30 January 1982 through 21 January 1984.

3.  He was honorably discharged on 9 May 1985 for the purpose of immediate reenlistment.  He reenlisted in the RA on 10 May 1985.  He served in Korea from 15 January 1986 through 14 January 1987.

4.  On 6 December 1988, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 15 November 1988.

5.  He was reported as absent without leave (AWOL) on 27 December 1988 and he was dropped from the Army rolls on 27 January 1989.  He surrendered to military authorities on 26 April 1989.

6.  On 2 May 1989, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  He was charged with one specification of being AWOL from 27 December 1988 through 26 April 1989.

7.  On 2 May 1989 after consulting with 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.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He admitted he was guilty of the charge against him and had no desire for further military service.

	a.  He also acknowledged that he could be discharged UOTHC.  As a result of the issuance of such a discharge he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration (VA).

	b.  He also acknowledged that there was no automatic upgrading or automatic review of his discharge by any government agency or the ABCMR.  If he desired a review of his discharge, he must apply to either the Army Discharge Review Board (ADRB) or the ABCMR and the act of consideration by either board did not imply his discharge would be upgraded.

8.  He waived his rights and elected to submit a statement in his own behalf.  In his statement, dated 3 May 1989, the applicant stated:

	a.  His AWOL basically started on 1 January 1988 after he started having some marital problems.  Every time he and his wife had a problem his wife would call his chain of command about the problem before confronting him.  That was a problem for him because his chain of command did not like his wife.  Eventually, his immediate supervisor got tired of her calling.

	b.  In September 1988, he and his wife had a terrible fight and she went to his first sergeant to have him removed from the house.  He was then ordered to surrender his house keys and find somewhere else to stay.  He rented a room in a house.  He didn't have any way to get back and forth to work because his wife had their new car.

	c.  His chain of command was on his back and he didn't want to be there anymore.  He is sorry for the offense he committed and wished he had done something else.

9.  On 12 May 1989, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of a discharge UOTHC and his reduction to pay grade E-1.

10.  He was discharged accordingly on 12 July 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was credited with completing 7 years, 7 months, and 4 days of net active service with 120 days of lost time.

11.  There is no indication to show he applied to the ADRB 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 specifies that a member who committed an offense or offenses for which the authorized punishment included 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.  The separation authority may direct a general discharge if such a discharge were merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  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 inappropriate.

14.  Army Regulation 635-200, 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 evidence of record shows the applicant accepted nonjudicial punishment under Article 15 for failing to go to his appointed place of duty.  He was reported AWOL on 27 December 1988 and surrendered to military authorities on 26 April 1989.  On 2 May 1989, he was charged with being AWOL from 27 December 1988 through 26 April 1989.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense.

2.  He also acknowledged that he could be discharged UOTHC and he could be ineligible for many or all benefits administered by the VA.  He further acknowledged that there was no automatic upgrading or automatic review of his discharge by any government agency or the ABCMR.  He must apply to either the ADRB or ABCMR for a review of his discharge and the act of consideration by either board did not imply his discharge would be upgraded.  The Army has never had a policy of automatically upgrading an individual's discharge to honorable after any passage of time.

3.  He provided neither sufficient evidence nor a convincing argument to show his discharge should be upgraded, and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20110024894



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ABCMR Record of Proceedings (cont)                                         AR20110024894



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