BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120012676 


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 discharge under other than honorable conditions.

2.  The applicant provides no explanation or justification for his request.

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 28 September 1976 for a period of 3 years, training as a motor transport operator, and assignment to Europe.  He completed one-station unit training at Fort Leonard Wood, Missouri, and was transferred to Germany on 30 January 1977.  He was advanced to pay grade E-4 on 1 April 1978.

3.  On 23 May 1978, he was honorably discharged in Erlangen, Germany, for the purpose of immediate reenlistment.  On 24 May 1978, he reenlisted for a period of 3 years.

4.  He departed Germany on 27 July 1979 for assignment to Fort Campbell, Kentucky.

5.  On 14 December 1979, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 19 to 30 November 1979.

6.  The applicant was again AWOL on 28 May 1980 and remained absent in desertion until he surrendered to military authorities at Fort Benning, Georgia, on 10 March 1981.  He was transferred to Fort Bragg, North Carolina, where charges were preferred against him for the absence.

7.  The facts and circumstances pertaining to his administrative discharge are not present in the available records as they were provided to the Veterans Administration (VA) in Montgomery, Alabama, on 14 September 1981.  However, the applicant's records contain a duly-authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 13 April 1981 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He completed a total of 4 years, 3 months, and 23 days of active service and had 297 days of lost time due to AWOL.

8.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge during that board's 
15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A 


condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorize the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant has offered no argument or explanation for his request and the evidence of record is not sufficient to warrant relief under the circumstances, especially given the length of his absence and the lack of mitigating circumstances at the time.  His service simply did not rise to the level of honorable or under honorable conditions.



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)                                         AR20120012676



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ABCMR Record of Proceedings (cont)                                         AR20120012676



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