IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120002466 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was stationed in Germany at the time when he learned that his wife back in the states had been raped.  He went home to take care of his wife and children.  When it was time for him to return to Germany he requested to return with his family but he was told they could not return with him. In good conscience, he could not leave his family in the United States.  Being unaware of what to do, he stayed home.  Military Police personnel ultimately took him to Fort Campbell, KY, and asked if he wanted to return to Germany or remain in the states.  He stated he would go back to Germany only if he could take his family with him; however, he was denied.  He was then processed out of the Army.  He now regrets not going back to Germany, but as a man and a father, he did not know what else to do.  He believes there was an injustice in not allowing him to serve his country and requests an upgrade of his discharge.

3.  The applicant provides 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 9 November 1984 for a period of 3 years.  He held military occupational specialty 31V (Tactical Communication Systems Operator/Mechanic).

3.  He was assigned to the 518th Signal Company, Germany, on 9 July 1985.  However, on 5 December 1985, he was reported absent without leave (AWOL) from his unit and on 4 January 1986, he was dropped from the rolls of his unit as a deserter.  He surrendered to military authorities at Fort Leonard Wood, MO on 25 March 1986.

4.  On 27 March 1986, his command preferred court-martial charges against him for one specification of AWOL from 5 December 1985 to 25 March 1986.

5.  On 31 March 1986, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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.

6.  In his request for discharge, he acknowledged he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also stated that under no circumstances did he desire further rehabilitation or to perform further military service.  He elected not to submit a statement in his own behalf.

7.  On 4 April 1986, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.  The immediate commander opined that the applicant's conduct rendered him triable by a court-martial under circumstances that could lead to a bad conduct or dishonorable discharge.

8.  On 8 April 1986, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 28 April 1986, the applicant was discharged accordingly.

9.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 1 year and 2 months of creditable active service and he had time lost from
5 December 1986 to 24 March 1986.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth 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 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.  It 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 record shows he 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.

3.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either an honorable or a general discharge.

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)                                         AR20120002466



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ABCMR Record of Proceedings (cont)                                         AR20120002466



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