IN THE CASE OF:	

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120020374 


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 to an honorable discharge.

2.  The applicant states, in effect, he joined the Army to get away from the peer pressure he was experiencing and to have a better life and career.  However, he received an assignment back to California and could not get out of it.  Being immature, he became irresponsible and allowed peer pressure to change his perspective on life – and for that he is sorry.  He also states that his life has changed.  He has come to respect authority and live by the laws of the land and he desires to have his discharge upgraded.

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 enlisted in the Regular Army in Oakland, California, on 2 July 1976 for a period of 3 years and training as a food service specialist and assignment to the Presidio of San Francisco.  He completed one-station unit training at Fort Dix, New Jersey, and was assigned to the Presidio of San Francisco on 14 November 1976.

3.  On 11 May 1977, nonjudicial punishment (NJP) was imposed against him for failing to go to his place of duty.

4.  On 22 June 1977, NJP was imposed against him for two specifications of failing to go to his place of duty.

5.  On 13 September 1977, NJP was imposed against him for being absent without leave (AWOL) from 10 to 12 September 1977.

6.  On 31 October 1977, NJP was imposed against him for being AWOL from 17 to 19 October 1977.

7.  On 15 February 1978, NJP was imposed against him for being AWOL from 21 to 31 January 1978.

8.  On 24 February 1978, he again was AWOL and remained absent until he returned to military control on 20 March 1978.  He was again AWOL on 24 March 1978 and remained absent in desertion until he was returned to military control on 28 June 1978.

9.  On 6 July 1978, charges were preferred against the applicant for being AWOL from 24 February to 20 March 1978 and 24 March to 28 June 1978.

10.  On 6 July 1978 after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

11.  The applicant's commander indicated the applicant was AWOL because of his financial situation, that he wanted to get out of the Army because of his inability to properly adjust, and had stated he would be AWOL again if returned to duty.  He recommended the applicant's discharge under other than honorable conditions.

12.  On 3 August 1978, the appropriate authority (a major general) approved the applicant's request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.

13.  On 11 August 1978, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 8 months, and 24 days of total active service.

14.  On 25 April 1984, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that his recruiter had told him that if he enlisted for training as a food service specialist he could be assigned to the Presidio of San Francisco, which was close to his home and after he got there he could change his military occupational specialty.  However, his commander at the Presidio of San Francisco did not support his reclassification which led to his disappointment and eventually to several Article 15's and his discharge.

15.  On 5 December 1984 after considering all of the available evidence, the ADRB determined that the applicant's discharge was both proper and equitable under the circumstances and voted unanimously to deny the applicant's request for an upgrade of his discharge.

16.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorize the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant relief under the circumstances, given the repeated nature of his offenses.

4.  Accordingly, there appears to be no basis to grant the applicant's request for an upgrade of his 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)                                         AR20120020374



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ABCMR Record of Proceedings (cont)                                         AR20120020374



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