IN THE CASE OF:	  

		BOARD DATE:	    2 October 2012

		DOCKET NUMBER:  AR20120006881 


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 that his discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states that he was told that his discharge would be upgraded after 6 months and it has not been upgraded yet.

3.  The applicant provides no additional documents with his application.

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.  After serving 4 years in the Navy, the applicant enlisted in the Regular Army on 9 November 1982 for a period of 4 years, a selective reenlistment bonus and training as an engineer tracked vehicle crewman.  He completed his training at Fort Leonard Wood, Missouri and was transferred to Fort Riley, Kansas for his first duty assignment.  

3.  On 22 December 1983 nonjudicial punishment was imposed against him for engaging in a fist fight with another Soldier.

4.  He was promoted to the pay grade of E-5 on 24 March 1984 and on 22 September 1984 he was transferred to Germany for assignment to an engineer company in Nuremberg.

5.  On 20 October 1984 he went absent without leave (AWOL) and remained absent in desertion until he was apprehended by civil authorities in Kansas on  18 December 1984 and was returned to military control at Fort Carson, Colorado where charges were preferred against him for desertion on 21 November 1984.  The applicant was advised that the maximum punishment for his offense was a dishonorable discharge, reduction to the pay grade of E-1, total forfeiture of pay and allowances, and confinement at hard labor for 3 years.

6.  On 22 January 1985, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also acknowledged that he understood that there were no provisions for automatic upgrading of a discharge under other than honorable conditions and that the percentages of discharges upgraded by the Army Discharge Review Board (ADRB) and this Board were very low.    

7.  He submitted a statement in his own behalf whereas he asserted that he did not want to be separated from his family and wanted out of the Army because his family needed him.

8.  The appropriate authority (a brigadier general) approved his request on 
5 February 1985 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 15 February 1985 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 2 years, 1 month, and 9 days of total active service and had 59 days of lost time due to AWOL.

10.  There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, 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.

13.  Army Regulation 635-200, 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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence, his rank at the time, and the short period of his service.  His service simply did not rise to the level of honorable or under honorable conditions.

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)                                         AR20120006881





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ABCMR Record of Proceedings (cont)                                         AR20120006881



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