IN THE CASE OF:	  

		BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120012458 


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 when he enlisted in the Army he thought he was going to be a crane operator.  He stated the recruiter told him if he signed up for four more years, he would get a signing bonus.  The recruiter did not inform him that in order to get a bonus he would have to enlist in an infantry - combat arms specialty, such as in military occupational specialty (MOS) 11B (Infantryman).  He states he is a single parent of a mentally and physically challenged child and he has been an outstanding citizen and taxpayer for 30 years.  He wants to set things right and he needs his benefits.  All relevant documentation was destroyed when his basement flooded in 1984.
 
3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and letter from his Congressman.

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 1976.  His DD Form 1966/6 (Application for Enlistment - Armed Forces of the United States) shows in Section VII (Enlistment Options) he enlisted for the Combat Arms Option in MOS 11B and assignment to the 9th Infantry Division, Fort Lewis, WA, as well as a $2,500.00 bonus.

3.  He attended and completed training under the one station unit training program at Fort Benning, GA, and he was awarded MOS 11B.

4.  Subsequent to completing his MOS training, he was reassigned to
Company A, 3rd Battalion, 47th Infantry, 9th Infantry Division, Fort Lewis.

5.  On 8 July 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order from his superior commissioned officer.

6.  On 27 January 1978, he departed Fort Lewis on leave en route to his next permanent duty station - Korea.  However, there is no evidence he proceeded with his reassignment instruction to Korea.

7.  On 6 March 1978, he was reported in an absent without leave (AWOL) status and on 5 April 1978, he was dropped from the rolls of the Army as a deserter.  He ultimately surrendered to military authorities at Fort Dix, NJ on 12 April 1978.

8.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, it appears upon his return, his chain of command preferred court-martial charges against him for his AWOL offense.  His record contains:

	a.  Orders 131-194, issued by Headquarters, U.S. Army Training Center (USATC), Fort Dix, dated 11 May 1978, ordering his discharge from active duty effective 11 May 1978.

	b.  a DD Form 214 that shows he was discharged on 11 May 1978 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 with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant completed 1 year, 10 months, and 24 days of total active service with 37 days of time lost time due to being AWOL.

	c.  A memorandum to the applicant at his address in Pennsylvania from the Chief, Enlisted Branch, Headquarters, USATC, Fort Dix, subject:  Reason/Authority for Separation (Discharge in Absentia), dated 11 May 1978, informing him that the reason for his discharge was "Admin [administrative] discharge conduct triable by court-martial."

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

10.  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 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 record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

2.  The applicant's enlistment contract shows he enlisted for a combat arms option in MOS 11B for assignment to the 9th Infantry Division and with a cash enlistment bonus.  There are no other options listed on his enlistment contract.  There is no evidence of record and he provides none to support his contention that the recruiter misled him.

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.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120012458



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ABCMR Record of Proceedings (cont)                                         AR20120012458



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