BOARD DATE:	  11September 2012

		DOCKET NUMBER:  AR20120004931 


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, in effect, upgrade of his general discharge to an honorable discharge.

2.  The applicant states he separated from the Army due to hardship and circumstances beyond his control.  He currently is working with veterans and has an Associate, Bachelor's, and Master's degrees and he still carries the unjust discharge he received.

3.  The applicant provides no documentary evidence 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 4 September 1980.  He was trained in and awarded military occupational specialty (MOS) 63W (Wheel Vehicle Mechanic).  His record shows private (PV2)/E-2 as the highest rank/
grade he attained and held while on active duty.

3.  On 12 December 1982, the applicant departed absent without leave (AWOL) from his unit.  He was dropped from the rolls (DFR) of the organization on
11 January 1983, and he remained away for 38 days until returning to military control at Fort Bragg, NC on 20 January 1983.

4.  On 24 January 1983, a DD Form 458 (Charge Sheet) was prepared on the applicant preferring a court-martial charge against him for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about
12 December 1982 to on or about 20 January 1983.

5.  On 26 January 1983, 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 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  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.

7.  In his statement, the applicant admitted that while in Germany he talked to his commander and counselor about getting a discharge and he was turned down.  He further indicated he had quite a few problems trying to adjust to military life and finally gave up.  He stated he did not like being ordered around and that when he went home on emergency leave he had no intention of returning. 


8.  On 12 August 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He also directed the applicant's reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On
19 August 1983, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed 2 years, 10 months, and 7 days of creditable active service with
38 days of time lost due to being AWOL.

9.  On 19 June 1985, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 4 March 1986, the applicant and counsel appeared before the ADRB.  The applicant testified in his own behalf and counsel made a presentation.  On 25 March 1986, after careful review of the applicant's testimony, counsel's presentation, and the applicant's available records, the ADRB determined that the mitigating circumstances in the applicant's case were sufficient to support a partial upgrade of his discharge.  Accordingly, the ADRB voted to upgrade the applicant's discharge to a general discharge.  As such, a new DD Form 214 was issued to the applicant showing his character of service as under honorable conditions (a general discharge).

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

	a.  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 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge because it was the result of circumstances beyond his control and based on his post-service conduct has been carefully considered.

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 under the provisions of Army Regulation 635-200,
chapter 10, 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 also 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 a under other than honorable conditions discharge by legal counsel.

4.  The ADRB voted to upgrade the applicant's discharge to a general discharge as a matter of equity.  While there is no objection to this action, the applicant's misconduct clearly diminished his overall record of service below that warranting a fully honorable discharge.  Although noteworthy, his post-service conduct is not sufficiently meritorious to support a further upgrade of his discharge at this late date. 

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120004931



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ABCMR Record of Proceedings (cont)                                         AR20120004931



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