BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110024922 


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 a general discharge (GD).

2.  The applicant states he was being treated for a mental disorder.  He would like to qualify for health care and housing.

3.  The applicant provides 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’s record shows he was enlisted in the Regular Army on 
9 April 1979, and he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 September 1979 for being absent without leave (AWOL) during the period 12 August 1979 through 30 August 1979.

4.  On 17 January 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for eight specifications of violating Articles 86, 91, and 134 of the UCMJ by failing to go to his appointed place of duty, being disrespectful in language, wrongfully possessing marijuana, breaking restriction, and stealing.

5.  On 22 January 1980, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge (UOTHC) could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  

7.  On 5 February 1980, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 
635-200 and directed the issuance of a discharge UOTHC.  On 15 February 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 9 months and 19 days of creditable active military service with 18 days of lost time.  

8.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 

9.  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 UOTHC is normally considered appropriate.

	b.  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.

	c.  Paragraph 3-7b provides that a 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 argues that his discharge should be upgraded to a GD so he can obtain benefits was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  Discharges under the provisions of this chapter are voluntary requests for discharge in lieu of trial by court-martial.  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.

3.  The applicant's record of service shows he was AWOL for 18 days in addition to the misconduct that lead to his discharge.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general discharge.
4.  In view of the foregoing, there is insufficient evidence to grant 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)                                         AR20110024922



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ABCMR Record of Proceedings (cont)                                         AR20110024922



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