IN THE CASE OF:	  

		BOARD DATE:	    31 January 2013

		DOCKET NUMBER:  AR20120013012 


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. 

2.  The applicant states he served the Army honorably for 3 years.  In a second application to the Board the applicant states that he needs his discharge upgraded to receive assistance and benefits.

3.  The applicant did not provide any additional documentary 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’s record shows he enlisted in the Regular Army on 28 March 1984.  He completed the required training and he was awarded military occupational specialty 13B (Cannoneer).  The highest rank he attained while serving on active duty was specialist four/pay grade E-4.

3.  On 11 December 1987, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) on the following occasions: 

* 19 May to 28 May 1987
* 29 May to 18 June 1987
* 26 June 1987 to 2 December 1987 

4.  On 11 December 1987, court-martial charges were preferred against the applicant for the above offenses.

5.  On 14 December 1987, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge 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.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercions whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and

	d.  he elected not to submit a statement in his own behalf.


6.  On 24 December 1987, the separation authority approved the applicant’s request for discharge and directed that he receive an under other than honorable conditions discharge. 

7.  On 11 February 1988, the applicant was discharged accordingly.  The 
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 3 years, 4 months, and 10 days of creditable active military service.  The applicant had a total of 188 days of lost time.

8.  On 11 June 1998, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, when a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  At the time, an under other than other conditions discharge 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.  The applicant’s request for an upgrade of his discharge under other than honorable conditions was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record shows he was AWOL during three separate periods for a total of 188 days.

3.  Absent evidence to the contrary the applicant's request was voluntary and his separation action was administratively correct and in compliance with applicable regulations.

4.  The applicant indicated that he needs his discharge upgraded so that he may be eligible for benefits.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either 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)                                         AR20120013012



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ABCMR Record of Proceedings (cont)                                         AR20120013012



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