BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004908 


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 was told by his company commander, who had kept him from attending the funeral of his grandmother, that he would get him out with a general discharge.

3.  The applicant provides a self-authored statement, dated 2 November 1978.

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 15 October 1976.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).
3.  The applicant was advanced to the rank/grade of private first class (PFC)/E-3 on 1 February 1978, and this is the highest rank/grade he held while on active duty.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  6 October 1977, for sleeping on guard duty; and

	b.  13 September 1978, for disobeying a lawful order from a noncommissioned officer (NCO) and for wrongfully using reproachful words toward a sergeant on 26 July 1978.

5.  The record shows the applicant also accrued 34 days of time lost due to being absent without leave (AWOL) on two separate occasions between 23 August and 6 October 1978.

6.  The applicant provides a self-authored statement, dated 2 November 1978, wherein he starts off by stating "With my request for discharge for the good of the service, …."  He further states "I had first requested the emergency leave on the Saturday before my grandmother's death.  Since that incident, I've lost all interest in the U.S. Army.  I have absolutely no desire to continue my military service."

7.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, his record includes a DD Form 214 (Report of Separation from Active Duty) that shows in item 27 (Remarks) the entry "Administrative discharge conduct triable by court-martial."  This indicates he was voluntarily discharged 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.  It further shows he completed 1 year, 11 months, and 29 days of total active service with 34 days of time lost due to AWOL.

8.  The available record indicates the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge subsequent to his separation.  His record contains a DA Form 2496 (Disposition Form), subject:  Reconstructed Records, dated 26 March 1981, wherein the ADRB was informed that in an effort to reconstruct the applicant's record the facts and circumstances leading to his discharge was unattainable.  Additionally, letters sent to the applicant were returned with no forwarding address given.  Since there was no known current address on the applicant, his case was closed out with no further action taken.
8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation 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, 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.  The applicant’s contention that his under other than honorable conditions discharge should be upgraded because he was promised he would receive a general discharge by his company commander has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The Army does not now have nor has it ever had a policy that allowed the company commander to dictate the characterization of service that a Soldier would receive in conjunction with separation for the good of the service - in lieu of trial by court-martial.  That authority is reserved to the general court-martial convening authority.

3.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

4.  The applicant's record confirms that during his short and undistinguished record of service he accrued 34 days of time lost for being AWOL and he had accepted NJP on two separate occasions.  It further indicates he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in receiving a punitive discharge.

5.  The under other than honorable conditions discharge the applicant received was normal and appropriate under the regulatory guidance in effect at the time and accurately reflects the overall character of his short period of service.

6.  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)                                         AR20120004908



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ABCMR Record of Proceedings (cont)                                         AR20120004908



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