IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120010412 


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 his under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states he fully acknowledges his part in the circumstances which led to his under other than honorable conditions discharge.  He states his life has been indelibly scarred by the ravages of alcohol, drug addiction, and homelessness.  He further states his unit commander would not allow him to transfer from his unit in Ohio to be with his brother in Georgia, so he just showed up at Fort McPherson, GA and signed in.  He truly intended on fulfilling his obligations, but he was young and foolish.  He is now 53 years old, born-again, and has come to grips with his past.      

3.  The applicant provides a letter and two-page resource guide. 

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 30 December 1958 and  enlisted in the U.S. Army Reserve at 19 years and 14 days of age on 12 January 1978.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was private/E-2.  However, at the time of his discharge he held the rank/grade of private/E-1.

3.  The applicant's record contains a DA Form 4187 (Personnel Action), dated    9 July 1980, which shows he was apprehended by civilian authorities on 2 March 1980, for burglary.  On 26 June 1980, the applicant appeared in the Fulton County Court, Atlanta, GA, and was placed on 2 years probation, fined $400.00, and returned to military control.

4.  On 10 July 1980, charges were preferred against the applicant for being absent without leave (AWOL) for the period 19 October 1979 through 26 June 1980.

5.  On 14 July 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, the applicant indicated he understood that by requesting a 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 or dishonorable discharge.  He further acknowledged he understood that 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected to submit a 


statement with his request in which he indicated that he was 21 years old and joined the Army to learn a skill.  He further requested probation for his burglary charge as a first-time offender.

7.  On 1 August 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge.  The separation authority also directed that the applicant be reduced to the lowest enlisted grade.  On 26 August 1980, the applicant was accordingly discharged.

8.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a trial by court-martial with an under other than honorable conditions discharge.  He had completed 5 months and 1 day of creditable active military service and he had 251 days of lost time.  

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  The applicant submitted a letter from the Director, House of Mercy, which states the applicant has been a resident and custodian assisting with maintenance since 6 March 2012.  The House of Mercy provides shelter, food, clothes, and other assistance to the homeless.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other Than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

12.  Army Regulation 635-200, 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 contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation   635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

4.  With respect to his age and maturity, the applicant was over 19 years of age at the time of his enlistment.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  

5.  The applicant's record of service shows he was AWOL for 251 days and was convicted by a civilian court of burglary.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general under honorable conditions 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)                                         AR20120010412



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ABCMR Record of Proceedings (cont)                                         AR20120010412



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