IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120008418 


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 undesirable discharge to general under honorable conditions.

2.  The applicant states he made a mistake while serving in the military and was absent without leave (AWOL) for a couple of months.  He states he was young and made poor choices; he started using drugs and drinking alcohol.  He states the military never offered any assistance with his drug and alcohol problem and believes that if assistance had been offered, he would have been able to serve his term of enlistment.

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.  The applicant was born on 9 April 1957.  He enlisted in the Regular Army on 26 August 1975 at 18 years, 4 months, and 18 days of age.  He was awarded military occupational specialty 11B (Infantryman) upon completion of initial entry training.

3.  DA Forms 4187 (Personnel Action) show he was AWOL on 1 August 1977 and returned to military control on 12 January 1978.

4.  On 13 January 1978, court-martial charges were preferred against him for the AWOL offense.

5.  On 13 January 1978, 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.  In his request he acknowledged that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications attached to his request and he was admitting guilt of the charges against him or of a lesser-included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he could be furnished an Undesirable Discharge Certificate and he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

7.  On 14 March 1978, the separation authority approved his request for discharge and directed his reduction to the lowest enlisted grade and issuance of a discharge under other than honorable conditions.  On 23 March 1978, he was discharged accordingly.

8.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  There is also no evidence indicating his misconduct was a result of drug or alcohol problems or that he sought assistance through military support channels for such problems.

10.  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, a discharge under other than honorable conditions is normally considered appropriate.

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's request for a discharge upgrade to general under honorable conditions has been carefully considered.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  His 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 charge against him or 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 AWOL offense and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends that he was young and made poor choices; however, he was over 20 years of age at the time he chose to be AWOL and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military obligations.

6.  He also contends that he started using drugs and alcohol and the military never offered any assistance with his drug and alcohol problem.  However, there is no evidence in his military records and he provided none substantiating this claim.

7.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20120008418



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ABCMR Record of Proceedings (cont)                                         AR20120008418



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