BOARD DATE:	  28 June 2012

		DOCKET NUMBER:  AR20120000698 


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, in effect, an upgrade of his discharge.

2.  The applicant states he was in the hospital at Fort Campbell, KY, when "they said” he was 45 days AWOL (absent without leave) in Germany.  He does not think it was right for "them" to charge him with that.

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.  The applicant's records show he enlisted in the Regular Army on 20 February 1979 and held military occupational specialty 63C (Track Vehicle Mechanic). 
3.  On 28 June 1979, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

4.  On 21 August 1979, he was issued reassignment instructions to proceed on a permanent change of station to the 21st Replacement Detachment, Frankfurt, Germany, with port call instructions, effective 15 September 1979.  He was authorized leave from 28 August to 15 September 1979.

5.  On 8 November 1979, by Disposition Form, an official at Fort Knox, KY, notified the 21st Replacement Detachment, Germany, that the applicant was pending a final decision on an application for compassionate reassignment.  He was attached to Fort Knox, KY, for 14 days.

6.  On 21 November 1979, he was issued new reassignment instructions to proceed on a permanent change of station to the 21st Replacement Detachment, Frankfurt, Germany, with port call instructions, effective 1 December 1979.  

7.  On 3 December 1979, after having failed to report to his permanent duty station, he was reported in an AWOL status and on 3 January 1980, he was dropped from the rolls as a deserter.  He surrendered to military authorities at Fort Knox, KY, on 4 March 1980.

8.  Court-martial charges were preferred against the applicant for one specification of AWOL from 3 December 1979 to 28 February 1980.  

9.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain:

	a.  An affidavit, dated 6 March 1980, signed by the applicant.  He stated he appeared before an officer and he was advised of his rights and advantages that may accrue to him by voluntarily remaining on active duty beyond the expiration of his term of service for the purpose of continuing medical care and/or hospitalization, if applicable.  

	b.  Orders 46-8, issued by Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, KY, on 10 March 1980, assigning him to the Special Processing Company, effective 4 March 1980.  The orders indicate he surrendered to military authorities at 1500 hours on 4 March 1980.

	c.  Orders 72-23, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, on 11 April 1980, ordering his discharge under the provisions of Army Regulation 635-200 (Personnel Separations) effective 16 April 1980.
	d.  a duly-constituted DD Form 214 that shows he was discharged on 16 April 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions character of service.  This form also shows he completed 11 months of creditable active service during this period and he had lost time from 1 December 1979 to 27 February 1980. 

10.  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 limitation.

11.  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 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 under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, 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.

13.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 16 April 1980 under the provisions of Army Regulation 635-200, chapter 10.

2.  The issuance of a discharge under the provisions of chapter 10 of Army Regulation 635-200, required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant provided no evidence that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service during his last enlistment.

3.  Nothing in his records shows he was hospitalized at Fort Campbell, KY, or that this alleged hospitalization prevented him from reporting to his permanent duty station.  The available evidence shows he was pending a compassionate reassignment and as such, his port call was changed from 15 September to 1 December 1980. 

4.  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.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, he is not entitled to an honorable or a general discharge.

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)                                         AR20120000698





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ABCMR Record of Proceedings (cont)                                         AR20120000698



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