IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120001773 


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 or a general discharge.

2.  The applicant states he believes his discharge was unjust because he completed over 2 years of active duty service and he would now like to serve in a Reserve Component.

3.  The applicant provides a work history, reference letter, and daughter's Certificate of Live Birth in support of his request.

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 September 1993.  He was trained in and awarded military occupational specialty (MOS) 31R (Transmissions Systems Operator).

3.  The applicant was advanced to private first class (PFC)/E-3 on 15 September 1994, and this is the highest rank he attained while serving on active duty.

4.  On 19 May 1995, the applicant departed absent without leave (AWOL) from his unit at Fort Hood, TX.  He was dropped from the rolls (DFR) of his unit on
19 June 1995 and he remained absent for 415 days until returning to military control at Fort Knox, KY on 6 July 1996.

5.  On 9 July 1996, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 19 May 1995 to on or about 7 July 1996.

6.  On 9 July 1996, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, 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 trial by court-martial.

7.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant elected not to submit statements in his own behalf.

8.  On 15 August 1996, the separation authority approved the applicant's request for discharge with an under other than honorable conditions discharge and reduction to private (PV1)/E-1.  On 7 November 1996, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 2 years and 5 days of creditable active service with 415 days of time lost due to AWOL.  It also shows he was awarded the National Defense Service Medal, Army Service Ribbon, and the Overseas Service Ribbon.

9.  There is no indication the applicant ever petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's
15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) sets forth 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 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 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's request to upgrade his discharge has been carefully considered.  However, there is insufficient evidence to support this request.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily 
requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He could have elected to submit a statement voicing his current contentions; however, he elected not to do so.
3.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It further shows that in his request for discharge, he admitted guilt to an offense that authorized the imposition of a punitive discharge.  Given the voluntary nature of his discharge request and the fact he was fully informed of the implications of an under other than honorable conditions discharge by legal counsel, his argument that his discharge was unjust is not sufficiently credible to support relief. 

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20120001773



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ABCMR Record of Proceedings (cont)                                         AR20120001773



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