IN THE CASE OF:  

		BOARD DATE:	    23 October 2012

		DOCKET NUMBER:  AR20120007168 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge was unjust because he was told it would be upgraded to honorable within 1 year.  He was denied treatment at the Department of Veterans Affairs (VA) hospital because of the type of discharge he received.  He contends when he joined the Army he was told life would be better for him and his children, but when he refused to give up custody of them over to anyone he was discharged.  He states his "recruiting officer" ruined his future in the Army by telling him he could finish high school in the Army and that upon completion of training he could bring his children to his permanent duty station.  He attests the Army was supposed to send an allotment to his mother for the care of his children, but they did not comply.  He concludes that when he spoke to his captain about his children being with him he was discharged.

3.  The applicant provides a self-authored statement and a court decree.

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 12 March 1979.  He did not complete initial entry training; therefore, he was not awarded a military occupational specialty.  The highest rank/grade he attained while serving on active duty was private (PV1)/E-1.

3.  His record contains:

	a.  a DD Form 1966 (Application for Enlistment - Armed Forces of the United States) that shows in item 9 (Marital Status) the entry "Single" and in item 10 (Number of Dependents) the entry "None."

	b.  a DD Form 93 (Record of Emergency Data), dated 12 March 1979, that shows in item 4 (Spouse's Name/Address) the entry "Single" and in item 5 (Children's Name/Relationship/Date of Birth (DOB)/Address) the entry "None."

	c.  a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 6 July 1979, that shows he was flagged for being absent without leave (AWOL) from his unit from 11 to 19 June 1979 and then departing again while pending punishment.

	d.  a DD Form 458 (Charge Sheet), dated 6 July 1979, that shows court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by departing his unit in an AWOL status on 6 July 1979; at which time he was dropped from the rolls (DFR) of his unit.  His chain of command recommended trial by general court-martial.

	e.  a DA Form 2-1 (Personnel Qualification Record - Part II) that shows in item 35 (Record of Assignments) the applicant returned to military control on 3 March 1980.

4.  On 18 March 1980, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an 

under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

5.  The final action by the separation authority is not contained in the available records; however, his record contains Orders 116-107, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 25 April 1980, that reassigned the applicant to the U.S. Army Separation Transfer Point for separation processing with a reporting and discharge date of 25 April 1980.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows that on 25 April 1980, he was discharged under the provisions of Army Regulation 635-200, chapter 10 with an under other than honorable conditions discharge.  He completed 5 months and 4 days of creditable active service with 249 days of time lost due to being AWOL/DFR.  Item 24 (Character of Service) shows the entry "under other than honorable conditions" and item 28 (Narrative Reason for Separation) shows the entry "administrative discharge conduct triable by court-martial."

7.  The applicant's record is void of any evidence and he has failed to provide any evidence that shows his discharge was directly related to the fact that he had custody of children or that anyone told him his discharge would be automatically upgraded within 1 year.

8.  The applicant provides a decree rendered in the Chancery Court of Pulaski County, AR, dated 20 September 1978.  This document shows that as a provision of the annulment of his marriage, he was awarded joint custody of two children and with physical custody beginning 1 October 1978 and ending 1 April 1980 and that the physical custody of the children would alternate each and every 6 months between him and the children's mother.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  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.

	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 contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The fact that a court granted the applicant joint custody of his children in September 1978 is duly noted.  However, at the time of his enlistment in March 1979, the applicant indicated he was not married and had no children.  Additionally, his record is void of any evidence and he has failed to provide any evidence that shows his discharge was directly related to the fact that he had custody of children or that anyone told him his discharge would be automatically upgraded within 1 year.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily 

requested discharge under the provisions of Army Regulation 635-200,
chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no 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)                                         AR20120007168



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007168



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1