IN THE CASE OF:	  

		BOARD DATE:  17 January 2013

		DOCKET NUMBER:  AR20120012809 


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 to honorable or general under honorable conditions.

2.  The applicant states he served the Army honorably until his family was homeless due to a fire.  He took time to get his family situated and then returned voluntarily.

3.  The applicant provides a self-authored letter addressing his reasons for being absent without leave (AWOL) from the Army and his reasons for his upgrade request.

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's record shows he enlisted in the Regular Army on 30 October 1981.  He completed training and was awarded military occupational specialty 19E (M48-M60 Armor Crewman).  The highest rank he attained while serving on active duty was specialist four/pay grade E-4.

3.  On 10 January 1984, charges were preferred against the applicant for being AWOL during the period 30 November 1983 to 5 January 1984.

4.  On 10 January 1984, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effect of a discharge under other than honorable conditions, and the procedures and rights available to him.

5.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant indicated he understood his discharge may be under other than honorable conditions.

6. On 14 February 1984, the applicant was accordingly discharged under other than honorable conditions.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 2 years, 2 months, and 10 days of creditable active military service with a total of 36 days of lost time.

7.  On 15 June 1998, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

8.  There is no evidence in the applicant's personnel service record to show he sought assistance for his family from his chain of command.

9.  The applicant provided a personal letter stating he took pride in the military and quickly moved up in rank.  He never had any issues until his family needed him.  He accepted the discharge under other than honorable conditions because the only other option was confinement and reduction in rank.  He was a good Soldier and he desires an upgrade so he can stand proudly among those with whom he served.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation 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 the charges have been preferred.  At the time, a discharge under other than other conditions was normally considered appropriate.

11.  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.

12. 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.  The applicant's request for an upgrade of his discharge under other than honorable conditions to honorable or general under honorable conditions was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the 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.  He voluntarily, willingly, and in writing, requested discharge from the Army 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.  Further, his discharge accurately reflects his overall record of service.

3.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20120012809



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ABCMR Record of Proceedings (cont)                                         AR20120012809



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