IN THE CASE OF:	 

		BOARD DATE:	    30 August 2012

		DOCKET NUMBER:  AR20120004692 


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 to a general discharge.

2.  The applicant states he went absent without leave (AWOL) due to the need to be with his wife who could not cope with being away from home.  He claims he was a model Soldier prior to going AWOL.

3.  The applicant provides a self-authored letter in support of his request.

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 17 January 1978.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  His record shows the highest rank/grade he attained while on active duty was specialist four (SP4)/E-4.

3.  The applicant’s disciplinary history includes accrual of 294 days of time lost due to AWOL.

4.  On 9 May 1981, the applicant departed AWOL from his unit at Fort Hood, TX.  He was dropped from the rolls (DFR) of his unit on 10 June 1981.  He remained away for 207 days until returning to military control at Fort Bragg, NC on 1 March 1982.

5.  On 10 March 1982, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based being AWOL from on or about 9 May 1981 to on or about 1 March 1982.

6.  On 12 March 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge(s) against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant confirmed he had no desire to perform further military service.

8.  On 13 April 1982, the separation authority approved the applicant's request for discharge and directed his reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 26 April 1982, the applicant was discharged accordingly.
9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time shows he completed 3 years, 5 months, and
22 days of creditable active service with 294 days of time lost due to being AWOL/DFR.

10.  There is no indication the applicant ever 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 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  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, an under other than honorable conditions discharge 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.  The applicant's request to upgrade his discharge has been carefully considered.  However, there is insufficient evidence to support this request.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service 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.
3.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It further shows that in his request for discharge, he admitted guilt to an offense that authorized the imposition of a punitive discharge, and he was fully informed of the implications of an under other than honorable conditions discharge by legal counsel.

4.  The character of discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge and it does not support an upgrade of his under other than honorable conditions discharge at this late date.

5.  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)                                         AR20120004692



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ABCMR Record of Proceedings (cont)                                         AR20120004692



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