BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120016908 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he is a member in good standing.  He does not have a criminal record, his last traffic infraction was over 20 years ago, and he generally tries to be a good citizen.  Although he made a poor choice 31 years ago, he has gone on to be a productive member of society.   

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's records show he enlisted in the Regular Army on 19 June 1978 and he held military occupational specialty 19F (M48/M60 Armor Crewmember).  He was assigned to Company B, 3rd Battalion, 64th Armor Regiment, Germany, on 21 April 1980.

3.  On 11 July 1980, he was reported as absent without leave (AWOL) from his assigned unit and on 12 August 1980 he was dropped from the rolls as a deserter.

4.  On 25 August 1980, he was returned to military control at Fort Ord, CA.

5.  On 5 September 1980, court-martial charges were preferred against him for one specification of being AWOL from 11 July to 25 August 1980.

6.  On 8 September 1980, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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.

7.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

8.  On 8 September 1980, his immediate commander recommended approval of his request for a discharge with an Under Other Than Honorable Conditions Discharge Certificate.  The commander stated the applicant went AWOL because of personal problems, he had stated he wanted a discharge so he could be with his family, and that if he was returned to duty he would go AWOL again.  The commander also stated the applicant was counseled regarding his right to apply for a hardship discharge or compassionate reassignment but he declined the opportunity and instead elected to pursue a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.
9.  On 13 and 16 March 1981 respectively, his intermediate and senior commander recommended approval of his request for a discharge with an Under Other Than Honorable Conditions Discharge Certificate.  

10.  On 18 March 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 15 April 1981, he was discharged accordingly.  

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 2 years, 8 months, and 15 days of net active service with 45 days of lost time due to AWOL.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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 included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 evidence of record shows the applicant was charged with the commission of offenses 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he was AWOL for 45 days when he was returned to military control.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120016908





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120016908



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1