IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120018423


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 discharge under other than honorable conditions (UOTHC) to a general discharge (GD).

2.  The applicant states:

	a.  He was held responsible when his dependent spouse wrote several bad checks while assigned for duty in Baumholder, Germany.  Although he tried to monitor her behavior, he was unsuccessful and her actions ultimately led to his discharge from the Army.

	b.  His discharge UOTHC is a blemish on his record, has affected every aspect of his life, and has hindered his opportunities, in particular his employment.

	c.  It has been 27 years since his discharge, he has worked hard to be an upstanding member of his community, he has not had any problems with bad checks, and, in taking the necessary steps to better his life, he seeks an upgrade of his discharge UOTHC to a GD.

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


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 military records show he enlisted in the Regular Army on 23 June 1982.  He was trained in and served in military occupational specialty 63H (Track Vehicle Repairer).

3.  On 26 April 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order.

4.  On 17 July 1985, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being absent without leave (AWOL) from on or about 24 May through 11 July 1985.

5.  On 17 July 1985, having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and of the procedures and rights available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

6.  In his request for discharge, he acknowledged his understanding that he would 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 that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of her UOTHC.  He further elected not to submit a statement in his own behalf.

7.  On 17 October 1985, after having considered the applicant's request, the separation authority approved his request and directed he receive a discharge UOTHC under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

8.  On 4 November 1985, the applicant was discharged accordingly.  His DD Form 214 shows he completed 3 years, 2 months, and 21 days of total active service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10 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.

	b.  Paragraph 3-7b provides that a GD 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.  Contrary to the applicant's claim that he was discharged as a result of his spouse's actions, the evidence of record confirms he was charged with the commission of an AWOL offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His request for discharge under the provisions of Chapter 10, Army Regulation 635-200, includes his admission of guilt.

2.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. As a result, there is an insufficient evidentiary basis to support an upgrade of his2	 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 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)                                         AR20120018423



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ABCMR Record of Proceedings (cont)                                         AR20120018423



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