IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120014256 


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, in effect, an upgrade of his under other than honorable conditions discharge (UOTHC) to an honorable discharge and to be given the proper awards and medals.

2.  The applicant states he was never given the proper awards and medals.

3.  The applicant does not provide any documents in support of his 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.  On 23 May 2003, the applicant enlisted in the Regular Army and was trained in, awarded, and served in military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 3 February 2005, special court-martial charges were preferred against the applicant for violation of Article 86, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from his unit on or about 12 August 2004 to 31 January 2005.

4.  On 3 February 2005, the applicant consulted with legal counsel and he voluntarily 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 special court-martial.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge.  He was advised that he could submit any statements he desired in his own behalf which would accompany his request for discharge.  He elected not to submit a statement.

5.  On 23 February 2005, the immediate commander recommended approval of the applicant's request for discharge with the issuance of a UOTHC discharge.

6.  On 25 February 2005, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with the issuance of a UOTHC discharge.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 March 2005 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with the issuance of a UOTHC discharge.  He completed 1 year, 3 months, and 28 days of active service and he had 170 days of lost time.  He was awarded the National Defense Service Medal (NDSM), Global War on Terrorism Service Medal (GWOTSM), and the Army Service Ribbion (ASR).

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
	
	a.  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 UOTHC discharge 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, under honorable conditions 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 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.  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.   All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

2.  The available evidence shows the applicant was AWOL for 170 days; therefore, his overall quality of service was not satisfactory and he is not entitled to either an honorable or a general discharge and there is insufficient evidence to show any other types of awards and medals authorized.  Considering all the facts of the case, the characterization of service was appropriate and equitable.
 
3.  In view of the foregoing, there is no basis for granting the applicant's requested relief for 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)                                         AR20120014256





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ABCMR Record of Proceedings (cont)                                         AR20120014256



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