BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120003634 


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 an upgrade of his under other than honorable conditions discharge and restoration of his rank/grade to private first class (PFC)/E-3.

2.  The applicant states, in effect, his discharge should be upgraded due to:

* the nature of the beating and psychological damage that was done to him by other Soldiers 
* his prior performance that resulted in advancement to PFC/E-3 before completing 18 months of service
* the bruising on his skull and how severe his condition was 

3.  The applicant did not provide any evidence. 

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's records show he enlisted in the Regular Army on 8 January 1991 and held military occupational specialty 12B (Combat Engineer).  He was promoted to private/E-2 on 1 February 1991 and PFC/E-3 on 1 April 1992.  

3.  He served in Germany from on or about 4 May 1991 to 16 May 1992.  He was assigned to D Company, 54th Engineer Battalion.  He was awarded the National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  On 17 May 1992, he departed his unit in an absent without leave (AWOL) status and on 16 June 1992, he was dropped from Army rolls as a deserter.  He surrendered to military authorities on 24 June 1992 at Eau Claire, WI, and was returned to military control on the same date. 

5.  On 25 September 1992, court-martial charges were preferred against the applicant for one specification of being AWOL from 17 May to 24 June 1992. 

6.  On 25 September 1992, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant acknowledged that:

* he was making this request of his own free will and had not been coerced by any person whatsoever
* he understood by requesting 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 discharge under other honorable conditions
* 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 Department of Veterans Affairs
* he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

8.  On 29 September 1992, the applicant's immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service. 

9.  Consistent with the chain of command's recommendations, on 9 October 1992, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10, Army Regulation 635-200, directed reduction to the lowest enlisted grade, and the issuance of an under other than honorable conditions discharge.  The applicant was accordingly discharged on 27 October 1992.  

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service, in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 8 months, and 
13 days of creditable active service, and his rank/grade is shown as private/E-1. 

11.  His separation physical is not available for review with this case.  Additionally, there is no indication in his records that show he suffered from any medical conditions during his military service.  

12.  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. 

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

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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 states 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 chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his extended period of AWOL.

2.  There is no evidence in his service records and he did not provide any substantiating evidence that shows he suffered from a medical condition and that such condition led him to go AWOL or that he addressed such issue with medical authorities or that if he did, medical authorities diagnosed him with any conditions. 

3.  With respect to his rank/grade, the separation authority approved the applicant's voluntary request for discharge in lieu of trial by court-martial and ordered the applicant's reduction to the lowest enlisted grade as required by regulation.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

4.  Based on his misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20120003634



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ABCMR Record of Proceedings (cont)                                         AR20120003634



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