IN THE CASE OF:	  

		BOARD DATE:	 4 January 2013 

		DOCKET NUMBER:  AR20120010791 


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:

* His discharge was for the convenience of the Government which does not carry an under other than honorable conditions characterization of service
* He requested a general discharge in agreement to no longer pursue action against his commanding officer
* He was unaware of the mistake in the character of service

3.  The applicant provides a internet article regarding types of discharge.

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 12 May 1977 and he held military occupational specialty 71L (Administrative Specialist).  He was assigned to the 720th Military Police Battalion, Fort Hood, TX.  The highest rank/grade he attained was private/E-2

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on/for:

* 4 November 1977, failing to go to his appointed place of duty
* 9 November 1977, feigning illness to avoid training and willfully disobeying a lawful order
* 2 December 1977, willfully disobeying a lawful order on two separate occasions
* 27 February 1978, wrongfully using marijuana

4.  On 17 May 1978, he departed his unit in an absent without leave (AWOL) status and on 14 June 1978, he was dropped from the Army rolls as a deserter.  

5.  On 23 June 1978, his command preferred court-martial charges against him for:

* One specification of being AWOL from 17 May 1978 to an unknown date
* One specification of willfully damaging a room wall
* One specification of stealing a bayonet with scabbard
* One specification of wrongfully possessing marijuana

6.  He was apprehended by civil authorities at Fort Worth, TX, and returned to military control on 16 September 1978. 

7.  On 28 September 1978, his command preferred court-martial charges against him for one specification of AWOL from 17 May 1968 to 16 September 1978.

8.  On 29 September 1978, he consulted with legal counsel and he was advised 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 of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested 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.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting 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 discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the 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
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law

9.  On 6 October 1978, his immediate commander recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

10.  On 12 October 1978, consistent with the chain of command's recommendations, 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 in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  

11.  On 19 October 1978, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 1 month, and 9 days of active service and he had 122 days of lost time during this period of service.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  He provides an internet article regarding the types of discharge.  This article states if discharged for the convenience of the Government, the characterization of service is honorable or general.
14.  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, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 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.  

2.  The applicant 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.

3.  With respect to his arguments:

	a.  Contrary to his argument that he requested a general discharge in agreement to no longer pursue action against his commanding officer, the evidence of record shows he was pending court-martial charges and instead of facing the charges, he elected the discharge.

	b.  Although an honorable or general discharge is authorized with an administrative discharge under chapter 10 of Army Regulation 635-200, his chain of command recommended an under other than honorable conditions discharge and the separation authority approved the discharge as such.

	c.  Contrary to his contention that he was unaware of the mistake in the character of service, the evidence of record shows he consulted with counsel and he was advised of his rights and the implications of his decision to request a voluntary discharge. 

4.  Based on his record of indiscipline, which included four instances of NJP and a lengthy period of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either an honorable or a general 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)                                         AR20120010791





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ABCMR Record of Proceedings (cont)                                         AR20120010791



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