IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120000899 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states that he can honestly say he gave his best and completed and performed all tasks in an exemplary manner during most of his service.  He was an armorer and saved the lives of 9 people on the range during a lightning storm and there were multiple casualties.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 4 February 1986, for 4 years.  He completed training and was awarded military occupational specialty 11B (Infantryman).  He served in Germany from 29 May 1986 through on or about 1 March 1988.

3.  On 25 November 1987, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company A, U.S. Army Personnel Control Facility, U.S. Army Training Center and Fort Dix, NJ.  He was charged with one specification of being absent without leave (AWOL) from 25 August through 19 November 1987.

4.  On 25 November 1987, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He admitted that he was guilty of the charge against him and had no desire for further military service.  He also acknowledged that he could be discharged under conditions other than honorable and furnished a UOTHC discharge; as a result of the issuance of such a discharge he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 8 December 1987, the applicant's company commander recommended approval of the applicant's request.  The company commander stated the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation.

6.  On 8 January 1988, 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.

7.  He was discharged on 11 March 1988, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with a UOTHC discharge.  He was credited with completing 1 year, 10 months, and 12 days of net active service with 86 days of lost time.

8.  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.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  A discharge UOTHC was normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 25 November 1987 the applicant was charged with being AWOL from 25 August through 19 November 1987.  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.  He also acknowledged that he could be discharged UOTHC and that he could be ineligible for many or all benefits administered by the VA.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  

2.  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 a general or fully honorable discharge.

3.  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 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)                                         AR20120000899





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ABCMR Record of Proceedings (cont)                                         AR20120000899



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