IN THE CASE OF:	  

		BOARD DATE:  6 November 2012

		DOCKET NUMBER:  AR20120007195 


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 his general discharge be upgraded to honorable.

2.  The applicant states, in effect, his under other than honorable conditions discharge was upgraded to a general discharge.  He is enclosing a copy of a digital video disc (DVD) of a television show that he did for the Public Broadcasting Station; he wrote the entire show.  He also has a few pictures where he had the mayor recognize some great citizens and one citizen was provided a proclamation.  He continues to work for the Department of Veterans Affairs (VA) in Temple, TX, where he serves veterans with the utmost respect.  If his discharge is upgraded to honorable, he can go to school and further his career in the VA.

3.  The applicant provides:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a letter
* an Army Discharge Review Board (ADRB) Case Report and Directive
* VA Form 0750 (Performance Appraisal Program), dated 7 November 2011
* a statement of support, dated 21 February 2008
* a [U.S.] PS (Postal Service) Form 5912-H (Notice of Rating Eligibility), dated 7 September 1994
* DA Form 348 (Equipment Operator's Qualification Record), dated 15 June 1990
* two permits
* two alcoholic beverage licenses
* two pages titled Military Career Outlined
* two pages titled Freedom's Journal
* a page titled Performance Appraisal
* two forms of identification
* four certificates
* a membership card
* a voters registration card
* a DVD, undated, of a television discussion panel 
* five photographs, undated, of unidentified individuals

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 records show he enlisted in the Regular Army on 4 January 1990 and he held military occupational specialty 13B (Cannon Crewmember).  
He was promoted to the rank/grade of specialist four/E-4 on 1 June 1991.

3.  He was assigned to the 3rd Battalion, 82nd Field Artillery, Fort Hood, TX, on 26 March 1992.  

4.  On 4 May 1993, he received nonjudicial punishment (NJP) under the provisions of Article 15 Uniform Code of Military Justice (UCMJ), for failing to go to his reported place of duty.  

5.  On 7 June 1993, he was reported absent without leave (AWOL) from his assigned unit and he was subsequently dropped from the rolls.

6.  On 11 August 1993, he surrendered to military authorities and he was returned to military control at Fort Hood, TX.

7.  On 18 August 1993, court-martial charges were preferred against him for one specification of being AWOL from 7 June to 11 August 1993.
8.  On 19 August 1993, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested 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.

9.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  

10.  On 1 November 1993, his immediate commander recommended approval of his request for a discharge with an under other than honorable conditions discharge.  The commander stated the applicant had become disillusioned with the military and his retention was not in the best interest of the Army.

11.  On 5 November 1993, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  On 30 November 1993, he was discharged accordingly.  

12.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 3 years, 8 months, and 16 days of net active service with 72 days of time lost due to AWOL and confinement.

13.  On 18 March 2009, the ADRB granted the applicant partial relief in the form of a general discharge.  However, it was determined the narrative reason for discharge was both proper and equitable, but his characterization of service was too harsh.  

14.  On 30 March 2009, his DD Form 214 was voided and a new one was issued that showed the characterization of his service as under honorable conditions (general).

15.  The applicant provides:

	a.  A VA Performance Appraisal, dated 7 November 2011, covering the rating period 1 October 2010 to 30 September 2011, wherein it shows he received an "excellent" performance rating while serving as a VA motor vehicle operator, Temple, TX.

	b.  A statement of support, dated 21 February 2008, wherein a former Army warrant officer stated since the applicant has been discharged, he has been involved in multiple activities serving the community.  He has been a successful businessman and is employed by the Temple VA where he proudly serves other veterans.  

	c.  Five photographs highlighting his past achievements/accomplishments.

16.  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 included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of a serious offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he was AWOL 72 days when he returned to military control.  Prior to his period of AWOL he received NJP for failing to go to his appointed place of duty.  Based on this record of misconduct his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Although the applicant's post-service conduct may be noteworthy it does not mitigate the fact that he was AWOL more than 2 months during his period of service.

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)                                         AR20120007195



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ABCMR Record of Proceedings (cont)                                         AR20120007195



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