BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120006658 


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 discharge under other than honorable conditions (UOTHC).

2.  The applicant states his mental condition was not known at the time of his discharge.  He claims he suffered from mental illness that was not diagnosed by Army doctors at the time.

3.  The applicant provides no 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 Regular Army on 29 April 1980, and was trained in and awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  It also shows he never advanced above the grade of private/E-1 while serving on active duty.

3.  The applicant's record documents no acts of valor or significant achievement.  It does reveal a disciplinary history that includes his accrual of 143 days of lost time during two separate periods of being absent without leave (AWOL) between 6 October 1980 and 4 May 1981.

4.  On 7 January 1981, the applicant was AWOL from his unit at Fort Ord, California.  He was dropped from the unit rolls on 8 February 1981 and remained away for 117 days until returning to military control on 5 May 1981.

5.  On 16 February 1981, a DD Form 458 (Charge Sheet) was prepared preferring a court-marital charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 7 January 1981 to on or about 4 May 1981.

6.  On 10 June 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and the procedures and rights available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant acknowledged that by requesting discharge he was admitting he was guilty of the charge or of a lesser-included offense that authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he understood the implication and loss of benefits attached to receiving a discharge UOTHC.

7.  The separation authority's approval memorandum is not in the available record.  The applicant's record does include a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for the applicant's separation.  It confirms the applicant was separated under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, by reason of conduct triable by court-martial.

8.  The applicant's DD Form 214 further shows he completed a total of 11 months and 29 days of creditable active military service and accrued 117 days of lost time due to AWOL.

9.  The applicant's record is void of any military medical treatment records indicating he was suffering from a disabling mental or physical condition at the time of his discharge processing.

10.  There is no indication that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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 discharge has been carefully considered.  However, there is insufficient evidence to support this request.  There is no evidence of record or independent evidence submitted by the applicant supporting his assertion that he suffered from a disabling mental condition at the time of his discharge processing.

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 for the good of the service in lieu of trial by court-martial.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  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 discharge UOTHC by legal counsel.

4.  The discharge UOTHC received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor.  It did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  As a result, 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 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)                                         AR20120006658



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ABCMR Record of Proceedings (cont)                                         AR20120006658



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