IN THE CASE OF:	

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120004556 


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.

2.  He states he was told his discharge would be upgraded after 6 months.

3.  He provides his DD Form 214 (Report of Separation 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 1 June 1976.  The highest rank/grade he held was private first class (PFC)/E-3.


3.  On 31 October 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period 1-6 June 1977, 18-19 July 1977, and
25 August to 20 September 1977.  His punishment included a suspended reduction to private (PV2)/E-2.

4.  On 16 November 1977, he missed the movement of replacements from the 21st Replacement Detachment to the 15th Adjutant General Replacement Detachment which he was required in the course of duty to move.  Additionally, on 28 November 1977, he was absent from his unit at Fort Hood, TX, and remained so absent until 29 November 1977.  As a result of these offenses, on 30 November 1977, his suspended reduction to PV2/E-2 imposed on 31 October 1977 was vacated.

5.  On 17 April 1978, court-martial charges were preferred against the applicant for operating a vehicle (motorcycle) on 27 February 1978 while drunk, and for two specifications of being AWOL for the period 23 - 30 March 1978 and
31 March - 17 April 1978.

6.  On 26 April 1978, he consulted with counsel and 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.  He acknowledged he understood he could request a discharge for the good of the service because charges had been preferred against him, which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications attached to his request.  He acknowledged he understood the elements of the offenses(s) charged.  He stated that under no circumstances did he desire further rehabilitation; he had no desire to perform further military service.  He acknowledged he understood if his request were approved he might be discharged under other than honorable conditions.  He waived his rights.  He elected not to submit a statement in his own behalf.

7.  On 28 April 1978, his commander forwarded his request for discharge.  His commander stated the applicant had been cited for driving while intoxicated on a previous occasion.  The applicant had gone AWOL twice and broke restriction to go AWOL the second time.  The applicant possessed character traits that he believed rendered the applicant incapable of rehabilitation.

8.  On 8 May 1978, the separation authority approved his 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 and directed the issuance of an under other than honorable conditions discharge.

9.  On 7 June 1978, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 10 months, and 8 days of total active service with 60 days of time lost.

10.  There is no indication he applied to 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.  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.  His records show he received NJP for being AWOL on three separate occasions.  Court-martial charges were preferred against him for operating a vehicle (motorcycle) while drunk and two specifications of being AWOL.

2.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, after being charged with an offense which authorized the imposition of a bad 


conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  His record contains no indication of procedural or other errors that would have jeopardized his rights.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  As such, he was properly and equitably discharged.

3.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  Additionally, the ABCMR does not upgrade discharges based solely on the passage of time.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120004556



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ABCMR Record of Proceedings (cont)                                         AR20120004556



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