BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120021511 


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 under other than honorable conditions discharge.

2.  The applicant states:

* At the time of his discharge he was a heavy drinker which caused him to say and do things that were not appropriate for military service
* He was sworn to protect the Constitution of the United States when he enlisted and he asks that the military protect his rights under the 14th Amendment
* He has had several run-ins with the legal system because of his alcoholism which led to violation of his civil rights

3.  The applicant listed a name for counsel but did not submit any documents, statements, or arguments by his counsel. 

4.  The applicant did not provide any 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's record shows he enlisted in the Regular Army on 24 April 1979.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows in item 11 (For all enlistees or reenlistees) the statement "my enlistment is more than an employment agreement.  As a member of the Armed Forces of the United States, I will..:"

	a.  Obey the lawful orders and perform all assigned duties;

	b.  Subject to separation during or at the end of my enlistment if my behavior fails to meet acceptable military standards and given a certificate for less than honorable service, which may hurt my future opportunities and claims for benefits; and 

	c.  Be subject to the military justice system, which means, among other things, that I may be tried by military courts-martial.  

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 19K (Armor Crewmember).

4.  Upon completion of MOS training he was reassigned to Germany on or about 19 August 1979.   He was assigned to Company B, 3rd Battalion, 35th Armor.

5.  On 6 December 1979, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* Being disrespectful in language towards a superior noncommissioned officer
* Disobeying a lawful order from a superior noncommissioned officer

6.  On 11 March 1980, he departed his unit in an absent without leave (AWOL) status and on 9 April 1980, he was dropped from the rolls as a deserter.  He surrendered to military authorities in Nashville, TN, on 15 April 1980.  

7.  On 1 May 1980, he was reported in an AWOL status by the U.S. Army Personnel Control Facility, Fort Knox, KY, but he again surrendered on 6 May 1980.
8.  On 27 May 1980, he departed his unit in an AWOL status and the same date he was dropped from the rolls as a deserter.  He surrendered to military authorities in Nashville, TN, on 23 July 1980. 

9.  On 31 July 1980, his command preferred court-martial charges against him for two specifications of being AWOL from 11 March to 15 April 1980 and 27 May to 23 July 1980. 

10.  On 1 August 1980, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal 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.  In his request for discharge he indicated or acknowledged that he:

* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* understood that if his discharge request was approved he could be deprived of many or all Army benefits 
* could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  He also submitted a personal statement wherein he stated the reason he joined the Army was to get an education.  However, he did not see any schools when he got in.  He believed he would receive a better education going to a public school.  He wanted out of the Army because he could not deal with the Army.  He had just gotten married and his wife was already talking about a divorce.  He did not want to lose his wife for the Army. 

12.  On 20 August 1980, his immediate and intermediate commanders recommended approval of his discharge action with the issuance of an under other than honorable conditions discharge.

13.  On 27 August 1980, the separation authority approved the applicant's request for voluntary discharge in lieu of a court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade, if applicable.  Accordingly, the applicant was discharged on 22 September 1980. 

14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 1 month, and 24 days of active service and he had multiple periods of lost time. 

15.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 normally considered appropriate.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  

17.  The 14th Amendment of the U.S. Constitution has four principles:

* State and federal citizenship for all persons regardless of race both born or naturalized in the United States was reaffirmed
* No state would be allowed to abridge the "privileges and immunities" of citizens
* No person was allowed to be deprived of life, liberty, or property without "due process of law"
* No person could be denied "equal protection of the laws" 
DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Contrary to his contention regarding alcoholism, his records reveal a history of AWOL.  He was discharged for being AWOL and having court-martial charges preferred against him.  He was not discharged for his alleged alcoholism.  Additionally, his post-service run-ins with the law are not related to his military service.  This Board has no jurisdiction over civilian matters pertaining to citizens who have run-ins with the law.

3.  When he enlisted in the Regular Army in April 1979 and swore to protect the Constitution of the United States he acknowledged that he understood he would be required to obey all lawful orders, perform all assigned duties, and he would be subject to separation during or at the end of his enlistment.  If his behavior failed to meet acceptable military standards, he would be discharged and given a certificate for less than honorable service.

4.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either honorable or general. 

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)                                         AR20120021511



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021511



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1