IN THE CASE OF:	   

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120010257 


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 did not know he could request an upgrade of his discharge. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 6 September 1979 and held military occupational specialty 19D (Cavalry Scout).  He was assigned to Fort Riley, KS.

3.  He was awarded or authorized the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar.  The highest rank/grade he attained was private/E-2.  

4.  On 25 June 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* Being absent without leave (AWOL) from 15 to 16 March 1980
* Failing to report to his appointed place of duty on two separate occasions
* Disobeying a lawful order from a superior noncommissioned officer
* Being disrespectful toward a superior noncommissioned officer

5.  On 18 July 1980, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 11 to 17 July 1980.

6.  On 15 August 1980, he departed his unit in an AWOL status and he was subsequently dropped from the rolls as a deserter.  While AWOL, he was apprehended by civil authorities for auto theft and released to his unit.  

7.  On 14 October 1980, he was convicted by civil authorities for the civilian offense of theft and sentenced to 8 months in a county jail.  He ultimately returned to military control on 6 July 1981.

8.  On 28 July 1981, his command preferred court-martial charges against him for one specification of being AWOL from 15 August 1980 to 14 October 1980.  

9.  On 29 July 1981, he 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.

10.  In his request for 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 also indicated 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 further acknowledged 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  He submitted a statement in connection with his voluntary request.  He stated:

* His father had a heart attack and his mother did not go through proper channels (Red Cross); he decided to go to his father's side
* The military was not what he expected and his attitude toward the military changed totally
* There was no possibility he could conform to the military style
* There would be no hesitation for him to go AWOL again; the military and he were not compatible

12.  On 1 August 1981, the separation authority approved the applicant's request for voluntary discharge for the good of the service in lieu of trial by a court-martial 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 6 October 1981.

13.  His DD Form 214 shows he was discharged on 6 October 1981 in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10 with a characterization of service as under other than honorable conditions.  This form shows he completed 1 year, 1 months, and 16 days of active service and he had lost time from 26 May to 15 June 1980, 11 to 16 July 1980, and 18 August 1980 to 5 July 1981. 

14.  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. 

15.  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.
16.  Paragraph 3-7b of Army Regulation 635-200 states 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.  After consulting with counsel and being advised of his rights, 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.  Based on his overall record of indiscipline, including multiple instances of AWOL, two instances of NJP, and a civilian conviction, 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)                                         AR20120010257





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ABCMR Record of Proceedings (cont)                                         AR20120010257



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