BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120005882 


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 under other than honorable conditions discharge to an honorable.

2.  He states at the time of his discharge, he was very young and immature and not prepared to handle the Army's expectations or do what needed to be done.  He offers that he has been a productive adult since his discharge and has a family in which he has raised them to give back to their community.  He maintains he has always been embarrassed about how he left the service. 

3.  He does not provide any 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's record shows he enlisted in the U.S. Army Reserve on
5 October 1974.  On 10 August 1979, at the age of 21 years and 11 months, he was involuntarily ordered to active duty in military occupational specialty 64C (Motor Transport Operator).

3.  On 11 September 1980, charges were preferred against him for being absent without leave (AWOL) from 7 September 1979 to 2 September 1980.

4.  On 12 September 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.

5.  In his voluntary request for discharge, he indicated he understood if his request were accepted he could receive an under other than honorable conditions discharge 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 an under other than honorable conditions discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, 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.  He submitted a statement in his own behalf.

6.  In his statement he said he was 23 years old and had a 9th grade education level.  He said he was ordered to active duty because he missed some meetings. He explained that his job in the Army was the battalion's driver and the job was nice prior to losing it.  He said he wanted out of the Army because he had a job, a wife, and a baby. 

7.  On 22 October 1980, the appropriate authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  On 19 November 1980, he was discharged accordingly.  He was 23 years old at the time of his discharge.  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 4 months and 
15 days of net active service during this period with the periods 9 September 1979 and 8 October 1979 to 1 September 1980 listed as lost time.

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 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 records show the applicant was almost 22 years old at the time he was involuntarily ordered to active duty and 23 years old at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  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 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.

3.  His record of indiscipline which includes 11 months and 28 days of lost time does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a discharge upgrade.

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)                                         AR20120005882





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ABCMR Record of Proceedings (cont)                                         AR20120005882



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