IN THE CASE OF: 

		BOARD DATE: 12 July 2012

		DOCKET NUMBER:  AR20120001208 


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 general.

2.  The applicant states he had just gone through a divorce and was fighting for custody of his children because that was in their best interest.  He did not comply with his transfer orders so he could protect his children.  He had served three enlistments honorably and was told if he was discharged for the good of the service it would not affect him adversely. 

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 Regular Army on 17 January 1973.  He completed training and was awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic).  He subsequently reenlisted and served continuously for about 10 years.

3.  On 24 January 1983, charges were preferred against the applicant for being absent without leave (AWOL) from 8 November 1982 until 19 January 1983.

4.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge UOTHC, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.

5.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of a UOTHC character of service.  The separation authority approved the recommendation on 20 April 1983.

6.  On 6 May 1983, the applicant was so discharged.  He completed 10 years and 18 days of net active service.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Army Good Conduct Medal
* Expert Marksmanship Qualification Badge with Rifle Bar

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  Army Regulation 635-200 provides 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 3-7b 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided no evidence to show any relationship between the AWOL that led to his discharge and the welfare of his children.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of his separation.

3.  The evidence shows that he acknowledged he understood he might receive a discharge UOTHC, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the VA.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.

4.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20120001208



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