IN THE CASE OF:	

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120011475 


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.  He states he was told he was an above average Soldier.  He adds his commanding officer would not help when he was in a bad situation.  Additionally, he says he was not aware of the discharge procedures.  

3.  He does not provide any 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 24 August 1978 for a period of 3 years.  He reenlisted on 28 July 1981 for an additional 6 years.
3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 
17 December 1982 for behaving with disrespect toward two superior commissioned officers and willfully disobeying a lawful command from a superior commissioned officer on 24 November 1982.

4.  The charge sheet or the facts and circumstances pertaining to his discharge proceedings in lieu of a trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), are not contained in his available military records.

5.  However, his record contains a duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on
20 December 1983, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of a trial by court-martial.  It shows his service was characterized as under other than honorable conditions.  It further shows he completed 4 years, 11 months, and 1 day of total active service with the period 3 June 1983 to 27 October 1983 listed as time lost. 

6.  On 11 April 1984, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 12 September 1984, the ADRB denied his request for a discharge upgrade citing that he was properly and equitably discharged.  The ADRB provided a summary of the facts and circumstances concerning the applicant's discharge.  The board listed the following:

* 2 November 1983, charged with being absent without leave (AWOL) from 6 June 1983 to 28 October 1983
* 2 November 1983, consulted with counsel, requested discharge under the provision of chapter 10, Army Regulation 635-200, for the good of the service.  He declined submission of a statement on his behalf
* 22 November 1983, unit commander recommended approval with an under other than honorable conditions discharge 
* 22 November 1983, intermediate commander concurred
* 30 November 1983, Staff Judge Advocate (SJA) concurred
* 1 December 1983, discharge authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time 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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions 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.  Although a copy of his chapter 10 discharge packet is not in his available records, the ADRB confirmed that the applicant was charged with AWOL from
6 June 1983 to 28 October 1983, he requested discharge in lieu of court-martial, his chain of command and the SJA concurred with the discharge request, and the discharge authority approved the request for discharge and directed the issuance of an under other than honorable conditions discharge.  

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows he voluntarily requested separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

3.  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 rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20120011475





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ABCMR Record of Proceedings (cont)                                         AR20120011475



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