IN THE CASE OF:	  

		BOARD DATE:	 15 November 2012 

		DOCKET NUMBER:  AR20120008038 


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:

* In June 1984, he requested permission from his company commander and squad leader to be present at his divorce hearing
* His commander did not allow him despite the need to be there; so, he went to his hearing which led his commander to report him absent without leave (AWOL)
* He turned himself in to military authorities at Fort Ord and he was told it was time to reenlist; he did not want to reenlist and opted to separate
* He had no knowledge of a court-martial

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 record shows he enlisted in the Regular Army on 14 October 1981 and held military occupational specialty (MOS) 11B (Infantryman).  Upon completion of MOS training, he was assigned to an infantry unit at Fort Hood, TX. However, he failed to report or join his unit.

3.  On 23 June 1982, he was reported in an AWOL status and on 23 July 1982, he was dropped from the rolls as a deserter.  He surrendered to military authorities at Fort Ord, CA, on 12 January 1983. 

4.  On 26 January 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 23 June 1982 to 12 January 1983.

5.  On 27 October 1983, he was placed in civilian confinement in Columbus, GA. He was released to military control on 5 November 1983.  The nature and disposition of charges is not available for review.

6.  On 5 December 1983, he departed his unit in an AWOL status and on 4 January 1984, he was dropped from the Army rolls as a deserter.  He was apprehended by civilian authorities and returned to military control in Long Beach, CA, on 6 June 1984.

7.  On 18 June 1984, his command preferred court-martial charges against him for one specification of being AWOL from 5 December 1983 to 6 June 1984. 

8.  On 18 June 1984, 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal 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.  

9.  In his request for voluntary discharge, he indicated:

* he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, 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
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated "I hereby state that under no circumstances do I desire further rehabilitation for I have no desire to perform further military service and he elected not to submit a statement on his own behalf

10.  On 27 and 28 June 1984, his immediate and senior commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

11.  Consistent with the chain of command's recommendations, on 11 July 1984, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 25 July 1984.

12.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 8 months, and 10 days of active service and he had 397 days of lost time.  

13.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

14.  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 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, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 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.  His discharge accurately reflects his record of service.

2.  Contrary to his contention, his records reveal an extensive history of AWOL or confinement.  He accrued 397 days of lost time due to multiple instances of AWOL.  When court-martial charges were preferred against him, the applicant had options.  He could have elected trial by a court-martial that was authorized to adjudge a bad conduct or a dishonorable discharge.  He elected a discharge in lieu of the court-martial.  

3.   Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's 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)                                         AR20120008038





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ABCMR Record of Proceedings (cont)                                         AR20120008038



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