BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120019673 


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).

2.  The applicant states he got into an altercation with his roommate.  He requested transfer to a firing battery from a service battery, but it was denied.

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.  On 1 October 1992 after prior Army National Guard service in military occupational specialty 13B (Cannon Crewmember), he enlisted in the Regular Army.  The highest rank/grade he held was specialist/E-4.

3.  On 26 May 1993, he was apprehended as a deserter by civilian authorities and returned to military control on 28 May 1993.

4.  On 28 May 1993, he stated in a sworn statement that he had gotten into trouble back home with some stolen merchandise.  Another person had stolen the merchandise and got him to pawn the merchandise for him.  The police took his identification card.

5.  On 2 June 1993, charges were preferred against the applicant for being absent without leave (AWOL) during the period 3 October 1992 to 28 May 1993.

6.  On 2 June 1993, the applicant consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge UOTHC, and the procedures and rights available to him.

7.  After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge against him or of a lesser-included offense which also authorized the imposition of a bad conduct or dishonorable discharge.

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge were accepted, he could be furnished a discharge UOTHC.  He acknowledged he had been advised of and understood the possible effects of a discharge UOTHC and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of a discharge UOTHC.

	f.  He waived his rights.  He elected not to provide a statement in his own behalf.

8.  On 8 July 1993, his chain of command recommended his discharge UOTHC.

9.  On 12 July 1993, the separation authority approved his request for discharge for the good of the service.

10.  On 3 August 1993, he was discharged in accordance with the separation authority's decision.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as UOTHC.

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

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

	a.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  The request had to include the member's admission of guilt.  The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge were accepted, the Soldier could be discharged UOTHC and furnished a UOTHC Certificate.  He or she would also acknowledge that he or she had been advised of and understood the possible effects of a discharge UOTHC and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits, might be ineligible for many or all benefits administered by the VA, and might be deprived of his or her rights and benefits as a veteran under both Federal and State laws.  He or she would further acknowledge that he or she understood he or she might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC.

	b.  Paragraph 3-7a states 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 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 that he had gotten into an altercation with his roommate and that his request for a transfer to a firing battery from a service battery was denied were considered.  There is no evidence to support these contentions.  However, even if there were, such issues would not be a basis for upgrading his discharge.

2.  He voluntarily admitted he was AWOL from on or about 3 October 1992 to on or about 28 May 1993.  The fact that his period of AWOL was terminated by apprehension by civilian authorities raises doubt as to his intention to return to military control of his own accord.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  This serious misconduct warranted his discharge UOTHC.  Both his character of service and the reason for his discharge were appropriate considering the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant a discharge upgrade.



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)                                         AR20120019673



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ABCMR Record of Proceedings (cont)                                         AR20120019673



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