IN THE CASE OF:	  

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120007189 


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 he sees the error of his past.  He was told he could request an upgrade of his discharge at any time.  He should not have done what he did and should have stayed in the military.  He loves his country and is sorry for leaving the military.

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 military records show he enlisted in the Regular Army in pay grade E-1 on 30 September 1985 for 3 years.  He completed training and was awarded military occupational specialty 12F (Engineer Tracked Vehicle Crewman).  He served in Germany from 23 February 1986 through on or about 22 September 1986.

3.  On 26 August 1987, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  He was charged with one specification of being absent without leave (AWOL) from 22 September 1986 through 23 August 1987.

4.  On 27 August 1987, after consulting with counsel, 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.

	a.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He admitted he was guilty of the charge against him and had no desire for further military service.  He also acknowledged that he could be discharged under conditions other than honorable and furnished a discharge UOTHC, as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration (VA).

	b.  He also acknowledged that he understood there was no automatic upgrading or automatic review of his discharge by any government agency or the ABCMR.  If he desired a review of his discharge, he must apply to either the Army Discharge Review Board (ADRB) or the ABCMR.  The act of consideration by either board did not imply that his discharge would be upgraded.

	c.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 31 August 1987, the applicant's company commander recommended approval of the applicant's request.  The company commander stated the applicant's conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.

6.  On 31 August 1987, the applicant's battalion commander recommended approval of the applicant's request.

7.  On 4 September 1987, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of a discharge UOTHC and his reduction to pay grade E-1.

8.  He was discharged UOTHC on 6 October 1987 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 1 year, 1 month, and 6 days of net active service with 335 days of lost time.

9.  There is no indication to show he applied to the ADRB 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.  Chapter 10 states a member who committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  A discharge UOTHC was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor and entitled 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.

12.  Army Regulation 635-200, paragraph 3-7b, states 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 evidence of record shows that on 26 August 1987 the applicant was charged with being AWOL from 22 September 1986 through 22 August 1987.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense.  He also acknowledged that he could be discharged UOTHC and he could be ineligible for many or all benefits administered by the VA.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.

2.  He provided neither sufficient evidence nor a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

4.  Additionally, he acknowledged that he understood there was no automatic upgrading or automatic review of his discharge and he must apply to either the ADRB or ABCMR.  The act of consideration by either board did not imply that his discharge would be upgraded.

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)                                         AR20120007189



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ABCMR Record of Proceedings (cont)                                         AR20120007189



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