IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004694 


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 discharge under other than honorable conditions to an honorable or a general discharge.

2.  He states he believes he was forced to take the discharge or be court-martialed instead of another alternative.  He feels he was coerced and he was not fairly represented by his appointed counsel.  He offers that he had only 
3 months remaining of his service in the Army.  Additionally, he maintains the following:

* his military occupational specialty (MOS) was 72E (Tactical Telecommunications Center Operator) 
* he had a TOP SECRET clearance
* his troubles began after he left Okinawa and went to a tactical unit at Fort Bragg, NC
* he became depressed at his new unit and felt he was not doing what he signed up for
* he took his complaints to his superiors to no avail
* he was depressed and was absent without leave (AWOL)

3.  He provides no additional 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 enlisted in the Regular Army on 7 July 1977 for 3 years in MOS 72E.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) on 6 December 1979 under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from 21 to 26 November 1979 and failing to go to his appointed place of duty on 3 December 1979.

4.  On 25 March 1980, charges were preferred against him for wrongfully and falsely altering a DD Form 689 (Individual Sick Slip), willfully disobeying a lawful order from a superior noncommissioned officer, and being AWOL from 11 to 20 March 1980.

5.  On 11 April 1980, he consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

6.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  The applicant elected not to provide a statement on his behalf.

7.  On 16 April 1980, the appropriate authority approved his request and directed the issuance of a discharge under other than honorable conditions.

8.  On 22 April 1980, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions character of service.  It also shows he completed 2 years, 8 months, and 13 days of net active service during this period with lost time from 21 to 25 November 1979, 4 January 1979 (should read "1980") to 23 January 1980, and 11 to 19 March 1980.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was 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 argues that his discharge should be upgraded because he was coerced into signing the request.  The evidence of record shows he signed his voluntary request for discharge indicating he was making the request of his own free will and he had not been subjected to coercion whatsoever by any person.

2.  He also maintains that he was not fairly represented by his appointed counsel. However, there is no evidence and he has not provided any to show he voiced his concerns to someone in his chain of command or sought assistance in securing other representation.  Additionally, it is noted that he declined to make a statement on his behalf when given the option.

3.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record further shows he admitted he was guilty of wrongfully and falsely altering a DD Form 689, willfully disobeying a lawful order, and being AWOL from 11 to 20 March 1980.  The record also shows he voluntarily requested separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

4.  His record of service included one NJP and over 30 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as unsatisfactory.  Therefore, he is not entitled to 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 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)                                         AR20120004694



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ABCMR Record of Proceedings (cont)                                         AR20120004694



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