IN THE CASE OF:	  

		BOARD DATE:	    15 January 2013

		DOCKET NUMBER:  AR20120010459 


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 to an honorable discharge.

2.  The applicant states he went absent without leave (AWOL) because his son was dying of leukemia.  He also states he would have applied for an upgrade sooner, but he was recovering from a suicide attempt and needed to get his head clear following his son's death.  He offers to provide his son's death certificate if needed.

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 enlisted in the Regular Army on 30 May 1978.  He completed initial entry training and was awarded military occupational specialty 12B (Combat Engineer).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, at the time of discharge he held the rank/grade of private/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for the following offenses:

* disobeying a lawful order from a noncommissioned officer
* stealing the personal property of another Soldier
* being drunk and disorderly

4.  His record contains a DD Form 458 (Charge Sheet), dated 27 July 1981, that shows court-martial charges were preferred against him for violating Article 86 of the UCMJ by departing his unit in an AWOL status from on or about 25 March to 21 July 1981.

5.  On 28 July 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

6.  In conjunction with his request for discharge the applicant elected to submit a statement in his own behalf wherein he essentially stated his educational level was 12th grade and he joined the Army because he was unemployed.  He concluded by stating the reason he desired to get out of the Army was that he had difficulty adjusting and felt he could no longer put up with the Army lifestyle.



7.  On 29 July 1981, the applicant underwent a mental status evaluation and the examining physician made no annotations pertaining to any extenuating circumstances existing in the applicant's personal life.  The physician noted no unusual behavioral or mental deficiencies and determined he was mentally responsible and had the mental capacity to understand and participate in administrative separation proceedings.

8.  Based upon the applicant's numerous offenses and failure to respond to rehabilitative efforts his company and battalion commanders recommended approval of his request for discharge for the good of the service with the issuance of a discharge under other than honorable conditions.

9.  On 13 August 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and issuance of a discharge under other than honorable conditions.

10.  On 2 September 1981, the applicant was discharged accordingly.

11.  His record is void of any evidence and he has not provided any evidence showing he was contending with the illness of his son at the time of his discharge offense.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

14.  Army Regulation 635-200, 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.

15.  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 is void of any evidence and he has not provided any evidence showing he was contending with the illness of his son at the time of his offense.  In the event he was, there is also no indication that he pursued any of the numerous options available to him at the time for seeking counsel and/or assistance with coping with the situation.

3.  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 Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The available evidence shows the applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

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)                                         AR20120010459



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ABCMR Record of Proceedings (cont)                                         AR20120010459



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