IN THE CASE OF:

		BOARD DATE: 19 July 2012

		DOCKET NUMBER:  AR20120001502 


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 general discharge be upgraded to honorable and that the narrative reason for discharge be changed.

2.  He states, in effect, that his discharge is inequitable because it was based on one isolated incident.  He served well over one half of his 4-year enlistment obligation.

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 15 March 1989.  He completed training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Oversea Service) he served 30 months in Germany and 5 months in Saudi Arabia.

	b.  item 9 (Awards, Decorations and Campaigns):

* Amy Service Ribbon
* Army Achievement Medal
* National Defense Service Medal
* Southwest Asia Service Medal with three bronze service stars
* Kuwait Liberation Medal-Saudi Arabia 

4.  On 8 September 1992, charges were preferred against the applicant for being absent without leave (AWOL) from 1 February to 28 August 1992 (6 months and 28 days).

5.  He consulted with counsel and 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 an under other than honorable conditions (UOTHC) discharge, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Department of Veterans Affairs (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.

6.  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 30 October 1992.

7.  On 16 December 1992, the applicant was so discharged.  He completed 3 years, 2 months, and 5 days of net active service.  

8.  On 6 October 2005, the Army Discharge Review Board upgraded his UOTHC discharge to a general discharge.

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC discharge 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge was inequitable because it was based on one isolated incident.  He had served well over one half of his 4 year enlistment obligation.

2.  The applicant's request for a discharge under the provisions of chapter 10, Army Regulation 635-200, was proper, and shows he wished to avoid court-martial and the punitive discharge he might have received.  His service was characterized due to the nature of his offenses (a lengthy AWOL) and the circumstances of his discharge.

3.  The type of discharge directed and the reasons were certainly not inequitable and 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)                                         AR20100015867



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ABCMR Record of Proceedings (cont)                                         AR20120001502



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