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ARMY | BCMR | CY2012 | 20120000100
Original file (20120000100.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	    8 May 2012

		DOCKET NUMBER:  AR20120000100 


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) under honorable conditions or to an honorable discharge (HD).

2.  The applicant states he was young and regrets what he did.  He further states that he is having a problem getting a job and upgrading his discharge would help him and his family.

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 enlisted in the Army National Guard on 6 February 1980.  He completed basic combat training; however, the applicant did not complete advanced individual training.  The highest rank/grade he attained was 
private/E-1.

3.  The applicant's records show that he entered active duty on 17 July 1980, and while in transit, he did not report to his gaining unit.  The applicant went into an absent without leave (AWOL) status and he was dropped from the Army rolls on 16 August 1980.  On 26 June 1981, he returned to duty.

4.  On 1 July 1981, charges were preferred against the applicant for being AWOL during the period 17 July 1980 through 26 June 1981.

5.  On 2 July 1981, 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 Uniform Code of Military Justice (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.

6.  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.

7.  The applicant elected to make a statement on his own behalf, which essentially states, that he went AWOL because of family problems.  Further, he states, in effect, that he requested to see the chaplain through his chain of command but was denied.

8.  On 21 July 1981, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army regulation 635-200 and directed that he receive a UOTHC discharge.  On 24 August 1981, the applicant was discharged accordingly.

9.  The DD Form 214 he was issued confirms he completed 1 month and 29 days of total creditable active military service with 301 days of lost time.  

10.  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.

11.  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.

12.  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.

13.  Army Regulation 635-200, 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's request that his discharge be upgraded to a GD under honorable conditions or an HD was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  Records show, while in transit, the applicant did not report to his gaining unit and was in an AWOL status during the period 17 July 1980 through 
26 June 1981.

3.  Based on the applicant's period of AWOL, which was 301 days, 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, the applicant is not entitled to the requested relief.





4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge 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.  The applicant provided no information that would indicate the contrary.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or employment benefits.

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)                                         AR20120000100





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ABCMR Record of Proceedings (cont)                                         AR20120000100



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