IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120001600 


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 discharge to an honorable discharge.

2.  The applicant states on 2 September [sic] 1983 he had a pain in his side so he stepped out of formation.  One of the noncommissioned officers (NCO) asked him if he was alright and told him to stay with the rest of the battery.  When they returned to the motor pool, the applicant asked to leave to seek medical treatment and was told he could not.  Another NCO concocted a story about him cursing at the NCO and the commander ended up giving him an Article 15.  In addition, he wants to know why he didn't receive a pay increase for his promotion to specialist four (SP4)/E-4 from 1 January 1982 to 5 June 1983.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* page 1 of an OSA Form 172 (Army Discharge Review Board (ADRB) Record of Proceedings)

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 29 September 1980 and he held military occupational specialty 13B (Cannon Crewmember).

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 25 June 1982 for failing to go at the time prescribed to his appointed place of duty
* 6 June 1983 for being disrespectful in language toward an NCO
* 6 July 1983 for failing to go at the time prescribed to his appointed place of duty

4.  On 2 August 1983, he was reported absent without leave (AWOL) from his unit and on 31 August 1983, he was dropped from the rolls of the Army as a deserter.

5.  On 8 January 1987, he surrendered to civilian authorities and he was returned to military control on the same date.

6.  On 9 January 1987, court-martial charges were preferred against him for one specification of being AWOL from 2 August 1983 to 8 January 1987.

7.  On 14 January 1987, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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 trial by court-martial.


8.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an under other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

9.  On 27 January 1987, his immediate commander recommended approval of his request for a discharge with an under other than honorable conditions discharge.  The commander stated the applicant had become disillusioned with the military and rehabilitation efforts were considered futile.

10.  On 29 January 1987, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10 with an under other than honorable conditions discharge and reduction to private (PV1)/E-1.

11.  On 9 February 1987, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged by reason of "for the good of the service - in lieu of court-martial" with an under other than honorable conditions characterization of service.  He completed 2 years, 11 months, and 5 days of creditable active service with 1,255 days (3 years, 5 months, and 6 days) of time lost due to AWOL.

12.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to SP4 on 1 January 1982 and reduced to private first class as a result of UCMJ on 6 June 1983.

13.  The applicant's pay records are not available for review with this case.

14.  On 14 September 1994, the ADRB determined the applicant's discharge was both proper and equitable and denied his request for a discharge upgrade.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	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 under other than honorable conditions 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.

	c.  Paragraph 3-7b provides that 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 the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he received NJP on three separate occasions and that he was AWOL for almost 3 1/2 years at the time he was returned to military control.  Based on this record of misconduct, 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, he is not entitled to an honorable or a general discharge.

3.  With respect to his contention that he did not receive SP4 pay from 1 January 1982 to 5 June 1983, there is no available evidence and he did not provide any evidence that shows he was not properly paid for the rank he held during that timeframe.  Therefore, there is an insufficient evidentiary basis for granting this portion of the applicant's requested relief. 


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)                                         AR20120001600



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ABCMR Record of Proceedings (cont)                                         AR20120001600



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