BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120017450 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he voluntarily turned himself in when he was declared absent without leave (AWOL) after being injured in an automobile accident
* he has an honorable discharge from his first enlistment
* he served 9 1/2 years of military service in good standing

3.  The applicant provides no 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 enlisted in the Regular Army on 31 July 1980 for a period of 4 years.  He completed training and was awarded military occupational specialty (MOS) 15E (Pershing missile crewman) and later MOS 13M (multiple launch rocket system crewmember).  He was honorably discharged on 16 February 1984 for the purpose of immediate reenlistment and he reenlisted on 17 February 1984 for a period of 6 years.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 2 April 1984.

3.  On 3 February 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for assault and being drunk and disorderly.

4.  On 12 April 1988, he accepted NJP under Article 15, UCMJ for being drunk and disorderly and damaging personal property.

5.  He was reported AWOL from 19 October 1989 to 13 December 1989.  On
21 December 1989, charges were preferred against him for the AWOL offense.

6.  On the same day, having consulted with 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.  He acknowledged that by submitting his request for discharge he was guilty of the charges against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under other than honorable conditions, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

7.  On 26 March 1990, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions and reduction to the lowest enlisted grade.

8.  On 10 April 1990, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, 


with an under than honorable conditions discharge.  He completed 9 years, 7 months, and 14 days of creditable active service with 55 days of time lost.

9.  On 6 February 1995, the Army Discharge Review Board denied his request for an honorable discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 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.  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 under other than honorable conditions 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 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 record of service during his last enlistment included two NJPs and 55 days of time lost while serving in the rank/grade of SGT/E-5.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.


3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20120017450



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ABCMR Record of Proceedings (cont)                                         AR20120017450



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