IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120007832 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant makes no additional statement.

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.  His records show he enlisted in the Illinois Army National Guard (ILARNG) on 17 May 1977.  After completion of training, he was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  On 10 March 1980, he was involuntarily ordered to active duty for a period of 20 months and 4 days based to unsatisfactory participation in the ILARNG.

4.  On 22 January 1981, court-martial charges were preferred against him for being absent without leave (AWOL) from 10 March 1980 to 18 January 1981.

5.  On 23 January 1981, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 
chapter 10 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

6.  He acknowledged that he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledge he had been advised of the implications that were attached to his request and that by submitting the request for discharge he was admitting guilt of the charge (s) against him or of a lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged that he understood he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life due to the issuance of an under other than honorable conditions discharge.

7.  On 17 February 1981, the separation authority approved his request for discharge, directed reduction to the lowest enlisted grade, and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 20 March 1981, he was discharged accordingly.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-200, 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.

11.  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 applicant requests his discharge under other than honorable conditions be upgraded.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or to charges of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge 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.  There is no indication the request was made under coercion or duress.

4.  Based on the offense he was accused of and in view of the fact that he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge his overall record of service did not support the issuance of a general or honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, his request should be denied.



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)                                         AR20120007832



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ABCMR Record of Proceedings (cont)                                         AR20120007832



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