IN THE CASE OF:	  

		BOARD DATE:	  	2 August 2012

		DOCKET NUMBER:  AR20120002830 


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 that his discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states, in effect, that he suffers from bi-polar disorder, which he believes may be related to his military duties, because he had mental problems when he served in the military.  He goes on to state the military diagnosed him as having an anti-social behavior pattern and he was discharged under chapter 10.  Accordingly, he desires to be compensated and to have his discharge upgraded.

3.  The applicant provides no additional documents with his application.

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 with a moral waiver for possession of marijuana, assault and battery, and resisting arrest on 1 February 1977 for a period of 3 years, training as an armor reconnaissance specialist and assignment to Fort Polk, Louisiana.

3.  He completed his training at Fort Knox, Kentucky and he was transferred to Fort Polk on 18 May 1977.

4.  His records show that he went absent without leave (AWOL) on 27 December 1977 and he was arrested and charged with first degree rape by civil authorities in Baltimore County, Maryland.   He was released from civilian confinement on
23 January 1978 and the disposition of his case is unknown.

5.  On 2 March 1978, he was convicted by a special court-martial of being AWOL from 19 December 1977 to 22 January 1978 and possession and concealment of stolen property.  He was sentenced to confinement at hard labor for 5 months, a forfeiture of $250.00 pay for 6 months, and reduction to pay grade E-1.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas to serve his confinement.  He remained at Fort Riley until 21 June 1978 and he was transferred to Fort Carson, Colorado.

6.  On 3 May 1979, nonjudicial punishment was imposed against the applicant for shoplifting at the Post Exchange and carrying a concealed weapon (switchblade knife).

7.  On 1 October 1979, charges were preferred against the applicant for wrongful possession, sale, and transfer of cocaine; multiple specifications of wrongful possession, sale, and transfer of marijuana; and one specification of being in an improper uniform.

8.  On 4 October 1979, after consulting with counsel, the applicant submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charge against him or of a lesser-included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his own behalf in which he stated that he did not realize what he was doing and that he wanted out to the Army so he could start a new job and get his head together. 

9.  On 19 October 1979, the appropriate authority (a major general) approved his request for discharge and directed that he be discharged under other than honorable conditions.

10.  Accordingly, on 26 November 1979, he was discharged under the provisions of chapter 10, Army regulation 635-200, in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had served 2 years, 
7 months, and 4 days of active service and he had 84 days of lost time due to being AWOL and in confinement.

11.  On 21 May 1980, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  At that time, he indicated he was just 18 years of age when he joined the military and he was too young to take advantage of what the Army had to offer.  He also stated that he had since gotten married, had a good job, and he was a good employee.  After reviewing the available evidence the ADRB determined that his discharge was both proper and equitable and voted to deny his request on 28 August 1981.

12.  At the time of his application to the Board, the applicant was incarcerated by the Maryland Department of Corrections.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the serious nature of the charges against him at the time, his repeated absences, and undistinguished record of service.  His service simply did not rise to the level of even 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)                                         AR20120002830



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002830



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1