IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120008867 


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 (UOTHC) discharge. 

2.  The applicant states he had no attorney or representation to present his case and no opportunity to speak.  

3.  The applicant provides no documentary evidence in support of his request. 

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 July 1976.  He was trained in and awarded military occupational specialty (MOS) 19E (Armor Crewman), and private first class (PFC)/E-3 is the highest grade he attained while serving on active duty. 

3.  The applicant’s record documents no acts of valor or significant achievement.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 August 1977, for unlawfully and wrongfully making a false statement under oath.

4.  On 6 October 1977, the applicant departed absent without leave (AWOL) from his unit at Fort Hood, Texas, and was dropped from the rolls (DFR) on 
6 November 1977.  The applicant remained away for 279 days until returning to military control at the Personnel Control Facility, Fort Knox, Kentucky on 12 July 1978.  

5.  On 18 July 1978, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 6 October 1977 to on or about 12 July 1978.

6.  On 19 July 1978, the applicant consulted with legal counsel and was advised that at the time, the government had not received the necessary documentation and/or records with which to obtain a conviction at a court-marital.  The applicant was further advised by counsel that he could not completely advise him without the records.  The applicant acknowledged his defense counsel was limited by the few records that were available as to the advice he could give.  Nevertheless, the applicant knowing all this to be true, waived all defenses that could have become known had his defense counsel been able to review his records.  Subsequent to receiving legal counsel, the applicant voluntarily declared that he was AWOL from 6 October 1977 to 12 July 1978, and indicated he made this admission for administrative purposes only so he could process out of the Army.  He further acknowledged that in making this admission, he would be given a UOTHC discharge, and that his military counsel had explained to his complete understanding and satisfaction all the legal and social ramifications of that type of discharge and what it would mean to him in the future.  

7.  On 14 September 1978, the applicant was discharged UOTHC, in the grade of private/E-1.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed a total of 1 year, 4 months, and      25 days of creditable active military service and that he accrued 279 days of time lost due to AWOL.  
8.  The record is void of any indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 
9.  Army Regulation 635-200 (Personnel Separations) 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 UOTHC 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 request that his discharge be upgraded because he had no representation has been carefully considered.  However, the evidence of record confirms the applicant consulted with military legal counsel and after being advised of his rights in connection with the contemplated trial by court-martial, admitted his AWOL offense and voluntarily requested a UOTHC discharge 

2.  The record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The evidence also confirms he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  



3.  Given the applicant's consultation with military legal counsel, his admission of AWOL, and the voluntary nature of his discharge request, his argument that he had no representation is not sufficiently credible to support relief.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  

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)                                         AR20120008867



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ABCMR Record of Proceedings (cont)                                         AR20120008867



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