IN THE CASE OF:	  

		BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120010894 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident while in service with no other adverse action.  He states he was “obscure” at that age and life has a way of making you realize that.

3.  The applicant provides two self-authored letters and two character reference letters.

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.  With prior active service, the applicant enlisted in the Regular Army on
10 October 1979 for a period of 3 years in pay grade E-1.  He completed training and he was awarded military occupational specialty 12B (Combat Engineer).

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 30 June 1980 for operating a passenger car while drunk on 18 April 1980
* 17 August 1981 for failing to obey a written lawful order on 20 July 1981 and behaving with disrespect toward a commissioned officer on 20 July 1981

4.  On 7 October 1981, court-martial charges were preferred against the applicant for 

* two specifications of assault on a noncommissioned officer (NCO)
* three specifications of being disrespectful in language toward three NCOs
* two specifications of disobeying a lawful order from two NCOs
* one specification of damaging Government property

5.  On 8 October 1981, additional charges were preferred against the applicant for:

* two specifications of disobeying a lawful order from two NCOs
* one specification of being disrespectful in language toward an NCO
* one specification of communicating a threat to an NCO

6.  On 26 October 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 dishonorable or a bad conduct 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.

7.  In his request for discharge, he acknowledged he understood that if the discharge request were approved, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of 

his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life

8.  On 2, 4, and 12 November 1981, respectively, his immediate and intermediate commanders recommended approval of his discharge.  They commented that the applicant had no potential for continued service and he was no longer an asset to the U.S. Army.

9.  On 17 November 1981, the separation authority, a major general, approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the rank/grade of private (PV1)/E-1 and issued an Under Other Than Honorable Discharge Certificate.

10.  On 23 December 1981, the applicant was discharged accordingly.  He completed 2 years, 2 months, and 14 days of net active service this period.

11.  He provides two character reference letters which describe him as a family man with good standing in the community.

12.  Army Regulation 635-200 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 under other than honorable conditions 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 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's records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service – 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.  He had an opportunity to make a statement when he requested discharge and elected not to do so.  Further, his discharge accurately reflects his overall record of service.

2.  Based on his record of indiscipline, 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.

3.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120010894



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ABCMR Record of Proceedings (cont)                                         AR20120010894



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