IN THE CASE OF:  

		BOARD DATE:  11 September 2012

		DOCKET NUMBER:  AR20120007492 


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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states it has been over 30 years since his discharge and he has been a responsible, productive member of society and he would like the discharge upgraded.  He was told he could have the discharge upgraded to honorable if he stayed out of trouble for a period of time.  He made a lot of mistakes as a young man and this discharge was one of them.  He had no male figures in his life.  He has been sober for 24 years.  He is now a loving husband, father, and brother; a responsible employee, and friend to his friends.  He respectfully requests upgrade of his discharge. 

3.  The applicant provides a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States). 

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 10 September 1979.  He completed training and was awarded military occupational specialty 75B (Personnel Administration Specialist).  He progressed normally and was advanced to pay grade E-3 on 1 July 1980.

3.  On 17 November 1981 charges were preferred against the applicant for being absent without leave (AWOL) from 7 August 1981 until 3 November 1981.

4.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge UOTHC, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.

5.  The chain of command recommended approval of his request and the issuance of a UOTHC discharge.  The separation authority approved the recommendation on 9 December 1981.

6.  On 18 December 1981, the applicant was so discharged.  

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  Army Regulation 635-200 provides 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 states 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.  There was not, nor has there ever been, any statutory, regulatory, or policy provision for automatically upgrading a discharge.  Each case is decided on its own merits when an applicant requests a change in the discharge.  Change may be warranted if it is determined that the characterization of service or the reason for discharge or both are improper or inequitable.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was characterized by the nature of the offense for which he wished to avoid punishment.

3.  The evidence shows that he acknowledged he understood he might receive a discharge UOTHC, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the VA.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.

4.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.


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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20120007492



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