BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120013873 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.

2.  The applicant states he was a good Soldier in time of peace and if war had come he still would have been a good Soldier.

3.  The applicant provides no additional documentation.

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 records show he enlisted in the Regular Army on 11 March 1980.  He completed training and was awarded military occupational specialty (12B) Combat Engineer.  The highest pay grade he achieved was specialist four/E-4.

3.  On 9 May 1984, the applicant received nonjudicial punishment (NJP) for five incidents of failure to go at the prescribed time to his appointed place of duty.  

4.  On 12 August 1985, court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 27 June 1984 to 7 June 1985.

5.  On 14 August 1985, after consulting with counsel, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In his request for discharge he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood he could receive a UOTHC discharge and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued a UOTHC Discharge Certificate and he would be deprived of many or all Army benefits.  

6.  On the same day, the applicant’s unit commander recommended that the applicant be discharged from the U.S. Army. 

7.  On 20 August 1985, the Commanding General approved the applicant's request for discharge for the good of the service, reduced the applicant to the lowest enlisted grade, and directed that he be issued a UOTHC Discharge Certificate.  

8.  On 26 September 1985, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service –in lieu of court-martial with an UOTHC Discharge Certificate.  He had completed 4 years and 
7 months of net active service and he had 344 days of time lost due to being AWOL.

9.  On 6 March 1998, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in part, 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 UOTHC is normally considered appropriate.

     a. 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.

      b.  Paragraph 3-7b states 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 were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence that shows his discharge was unjust and/or unfair.  He was AWOL for almost a full year.

2.  The applicant 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.  After consulting with legal counsel and being advised of his rights, the applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he 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.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  In view of the foregoing, there is no 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 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)                                         AR20120013873



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ABCMR Record of Proceedings (cont)                                         AR20120013873



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