IN THE CASE OF:	  

		BOARD DATE:  26 July 2012

		DOCKET NUMBER:  AR20120002040 


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, in effect, that his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that his discharge should have been automatically upgraded 6 months after his separation.

3.  The applicant provides no additional documentation.

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.  On 5 September 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 94B (Food Service Specialist).  He was subsequently assigned to the 3rd Battalion, 36th Infantry Regiment located in the Federal Republic of Germany.

3.  On 28 January 1983, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from on or about 5 to 10 November 1982 and from on or about 29 November 1982 to 12 January 1983 (approximate total of 51 days).

4.  The applicant was confined from 28 January to 17 February 1983 (21 days).

5.  On 23 February 1983, the applicant's commander notified him of his intention to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for commission of a serious offense.

6.  On 24 February 1983, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

7.  On 25 February 1983, the applicant’s commander recommended separation from the service for commission of a serious offense.  He cited the applicant's two periods of AWOL and stated that it was obvious that the applicant had no intent or desire to complete his term of service.

8.  On 9 March 1983, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.

9.  On 15 March 1983, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

10.  Accordingly, on 21 March 1983, the applicant was discharged under other than honorable conditions.  He had completed 2 years, 4 months and 7 days of creditable active duty service, and had approximately 72 days of lost time due to AWOL and confinement.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  This regulation further provides that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).

	c.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	d.  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.  

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is confinement for 1 year and a punitive discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should have been automatically upgraded after 6 months.

2.  The record shows the applicant was AWOL for more than 30 days which is clearly considered a serious offense under the UCMJ.



3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

5.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20120002040





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ABCMR Record of Proceedings (cont)                                         AR20120002040



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