BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120008001 


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 under other than honorable conditions discharge.

2.  The applicant states he was a young Soldier dealing with the death of his father and his family was in need of his support.  He had no idea of the impact of his decision and how it would affect him.

3.  The applicant did not provide any 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 records show he was born on 26 May 1959.  He enlisted in the Regular Army at age 20 on 6 June 1979 and he held military occupational specialty 94B (Food Service Specialist).   He was subsequently assigned to Fort Jackson, SC.

3.  On 3 October 1979, he was reported in an absent without leave (AWOL) status.  However, he returned to military control on 16 October 1979.

4.  On 18 October 1979, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 3 to 16 October 1979. 

5.  On 7 December 1979, he again departed his unit in an AWOL status and he was dropped from Army rolls as a deserter.  He surrendered to military authorities at Fort Sheridan, IL, on 11 April 1980, and he was subsequently transferred to Fort Knox, KY for processing.

6.  On 21 April 1980, court-martial charges were preferred against the applicant for being AWOL from 7 December 1979 to 11 April 1980.  

7.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights 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.

8.  He indicated in his request for discharge that he:

	a.  was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  understood by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions;

	c.  was acknowledging he understood if his discharge request were approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration;

	d.  was acknowledging he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and
	e.  did not desire further rehabilitation and he had no desire to perform further military service.

9.  On 27 August 1980, his immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.

10.  On 5 September 1980, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, due to administrative discharge conduct triable by court marital.  It was directed that he be reduced to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge.  On 24 September 1980, the applicant was discharged accordingly.

11.  The applicant's DD Form 214 shows he completed 11 months and 2 days of creditable active service during this period with 134 days of lost time.

12.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

13.  Army Regulation 635-200 sets forth 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 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 record shows he was charged with the commission of an 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  With respect to his arguments:

	a.  There is no evidence in his records and he provides none to show the death of his father led to his AWOL offense.  Additionally, there is no evidence he addressed this issue with his chain of command or requested help in the form of leave, compassionate reassignment, or a hardship discharge.

	b.  The applicant was age 20 at the time of enlistment.  There is no evidence that his age contributed to his misconduct or that he was any less mature than other Soldiers who successfully completed their service obligation. 

3.  Based on his record of indiscipline, specifically his extensive history of AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge. 

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)                                         AR20120008001



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ABCMR Record of Proceedings (cont)                                         AR20120008001



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