IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120012290 


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, in effect, an upgrade of his discharge under other than honorable conditions to an honorable or a general discharge.

2.  The applicant states he was told he could have his discharge under other than honorable conditions "removed" if he stayed out of trouble for 6 months and he did so.

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 23 May 1977.  He completed training as a personnel management specialist.

3.  On 11 July 1978, the applicant accepted nonjudicial punishment for possession of one ounce, more or less, of marijuana.

4.  The applicant reenlisted in the Army for 3 years on 27 November 1979.

5.  On 10 April 1980, the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 7 March until 9 April 1980.  He acknowledged receipt of the notification on 11 April 1980.  After consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

6.  The appropriate authority approved his request for discharge on 30 April 1980 and directed the issuance of a discharge under other than honorable conditions.  On 23 May 1980, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 10 months, and 26 days of total active service and he was AWOL from 19 to 20 March 1979 and from 7 March to 8 April 1980.  He received an under other than honorable conditions character of service.

7.  A review of the applicant's Army Military Human Resource Record (AMHRR) does not show he was ever told that the type of discharge he received would be "removed" if he stayed out of trouble for 6 months after his discharge.

8.  Further review of his AMHRR does not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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.  A discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service.

	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 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 contentions have been noted and his supporting evidence has been considered.

2.  There is no evidence in the available records showing he was told that the type of discharge he received would be "removed" if he stayed out of trouble for 6 months after his discharge.

3.  The available evidence shows he was AWOL for approximately 30 days and he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  He was discharged in accordance with the applicable regulation and the type of discharge he received appropriately characterizes his overall record of service.

4.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.  The applicant's periods of AWOL rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, his request should be denied.

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 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)                                         AR20120012290



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012290



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1