IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120004905 


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 his discharge under conditions other than honorable be upgraded to honorable.

2.  The applicant states his discharge was unjust because he served in the Persian Gulf War and received the Southwest Asia Service Medal with 2 bronze stars, National Defense Medal, Army Service Ribbon, Marksman Marksmanship Qualification Badge (M-16 Rifle), Expert Marksmanship Qualification Badge (Hand Grenade), and Driver’s Badge – T Bar.

3.  The applicant provided a copy of his DD 214 (Certificate of Release or Discharge 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 10 August 1988 and successfully completed training.  He was awarded military occupational specialty 11B (Infantryman).  The highest rank he attained while serving on active duty was private/E2.

3.  The available records indicate the applicant was absent without leave (AWOL) from:

* 26 July through 17 August 1990, a total of 23 days
* 19 December through 26 December 1990, a total of 8 days
* 3 June through 20 October 1991, a total of 140 days

4.  On 29 October 1991, charges were preferred against the applicant for being AWOL.

5.  On 29 October 1991, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He acknowledged in his request that he understood he was being discharged under other than honorable conditions, that 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to make a statement in his own behalf.

6.  On 5 November 1991, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the applicant be reduced to the lowest enlisted grade and given an under other than honorable conditions discharge.  

7.  On 25 November 1991, the applicant was discharged accordingly.  The 
DD Form 214 he was issued indicates he completed 2 years, 9 months, and
25 days of active service.  It also indicates the applicant received the Southwest Asia Service Medal with 2 bronze stars, National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge (Hand Grenade), Marksman Marksmanship Qualification Badge (M-16 Rifle), and Driver’s 
Badge - T Bar.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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, at any time after the charges have been preferred, 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. An under other than honorable conditions discharge is normally considered appropriate.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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 that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  Records clearly show the applicant voluntarily 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 overall record of service.

3.  Based on his record of indiscipline, which includes multiple instances of being AWOL, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant 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)                                         AR20120004905



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ABCMR Record of Proceedings (cont)                                         AR20120004905



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