BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005690 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).  

2.  The applicant states he agreed to a general, under honorable conditions discharge (GD) in 1984; however, when applying to the Department of Veterans Affairs (VA) for benefits in 2011 he discovered he received a UOTHC discharge.  He claims his paperwork indicated he would receive a GD or HD.  

3.  The applicant provides the six enclosures identified in item 9 (In support of this application, I submit as evidence the following attached documents) of his DD Form 149.  

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 9 February 1982.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The record shows the applicant was advanced to private/E-2 on 1 August 1982, and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-1 for cause on 21 November 1983.  

4.  The records shows the applicant earned no individual awards for meritorious service or achievement and it documents no acts of valor or significant achievement.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) on 29 October 1982, for violating a lawful general regulation by overpurchasing coffee, mayonnaise, liquor, and cigarettes.  

5.  On 5 January 1984, the applicant departed absent without leave (AWOL) from his unit at Fort Polk, Louisiana.  He was dropped from the rolls (DFR) of his unit on 6 February 1984, and he remained absent for 95 days until returning to military control at Fort Carson, Colorado on 8 April 1984.  

6.  On 17 April 1984, 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) by being AWOL from on or about 5 January 1984 to on or about 8 April 1984.  

7.  On 18 April 1984, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-martial and 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, he voluntarily requested discharge 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.

8.  In his request for discharge, the applicant acknowledged that if his discharge request were accepted, he could be discharged under other than honorable conditions and furnished a UOTHC Discharge Certificate.  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.  



9.  On 24 April 1984, the separation authority approved the applicant's request for discharge with a UOTHC discharge.   On 3 May 1984, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 1 year, 11 months, and 20 days of creditable active service with 94 days of time lost due to AWOL.  The DD Form 214 clearly identifies the characterization of service as "Under Other Than Honorable Conditions" in item 24 (Character of Service).  He signed the DD Form 214.

10.  The applicant provides a packet of documents prepared during his separation processing.  These documents do not indicate that he was promised a GD or HD at the time.  To the contrary, the commander's decision in Part V of Commander's Information Summary Sheet submitted by the applicant indicates the discharge being recommended by his commander was UOTHC. 

11.  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.

12.  Army Regulation 635-200 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, a discharge UOTHC 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 UOTHC discharge because he was promised a GD at the time has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant acknowledged his understanding that as a result of requesting discharge for the good of the service in lieu of trial by court-martial he could receive a UOTHC discharge and that as a result of such a discharge he would be deprived of many or all veteran benefits.  

3.  The evidence of record also 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.  

4.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  Given the voluntary nature of his discharge request, absent any evidence of error or injustice related to his discharge processing, there is an insufficient evidentiary basis to support granting the 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)                                         AR20120005690



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ABCMR Record of Proceedings (cont)                                         AR20120005690



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