BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120021346 


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 discharge under other than honorable conditions to honorable or general under honorable conditions.

2.  The applicant states he was very impulsive and immature in the service.  He and his father, who was a command sergeant major, fought over this for years.  This was only the first of many bad decisions.  Now he seeks resolution and hopefully some forgiveness.

3.  The applicant provides a copy of his 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.  On 26 May 1987, the applicant enlisted in the Regular Army.  He completed training as an artilleryman at Fort Sill, Oklahoma, and remained stationed there with a field artillery battery.  He was advanced to pay grade E-2 in November 1987.

3.  He was reprimanded in June 1988 for driving while intoxicated and being absent without leave (AWOL) from 14 November to 19 December 1988.

4.  When charges were preferred for that offense, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions and an under other than honorable conditions discharge.  He indicated that he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.

5.  The chain of command recommended approval of the applicant's request for discharge and the Staff Judge Advocate found the case legally sufficient.

6.  The separation authority approved the request and directed the issuance of a discharge under other than honorable conditions.

7.  On 30 January 1989, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He completed 1 year, 7 months, and 2 days of creditable active service.

8.  There is no indication the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  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, an under other than honorable conditions discharge is 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.

10.  The Table of Maximum Punishments of the Manual for Courts-Martial shows a punitive discharge is authorized for any AWOL of more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid a trial by court-martial and the punitive discharge that he might have received.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors.

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

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)                                         AR20120021346



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ABCMR Record of Proceedings (cont)                                         AR20120021346



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