IN THE CASE OF:  

		BOARD DATE:  20 June 2013

		DOCKET NUMBER:  AR20120021590


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 he trusts that the members of the Board can find it in their hearts to forgive him.  He cannot say his punishment and the characterization of his service were unjust; because they were just, at the time.  He concludes by stating he was young and wrong at the time; he could not find any excuses then and he has no excuses today.

3.  The applicant provides 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.  The applicant enlisted in the Regular Army on 21 July 1981.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  On or about 12 April 1982, his unit reported him in an absent without leave (AWOL) status.  He returned to his unit on or about 15 April 1982.

4.  On or about 4 January 1984, his unit reported him in an AWOL status.  He remained AWOL until he returned to his unit on or about 3 February 1984.

5.  On 17 February 1984, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 4 January through 3 February 1984.  

6.  On or about 14 May 1984, his unit reported him in an AWOL status.  On or about 13 June 1984, he was dropped from the rolls of the Army.  

7.  On 5 September 1984, he surrendered to military authorities at Fort Sill, OK.

8.  On 6 September 1984, court-martial charges were preferred against him for being AWOL, from on or about 14 May through 5 September 1984.

9.  On 7 September 1984, he consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he acknowledged:

   a.  He understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  

   b.  He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  
   
   c.  He further acknowledged he understood that if his discharge request was approved, he could 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 laws.  
   d.  He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements.

10.  On 28 September 1984, the Acting Commander of the U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  

11.  On 19 October 1984, he was discharged accordingly.  The DD Form 214 he was issued shows:

* he was credited with the completion of 2 years, 10 months, and 6 days of net active service during this period of enlistment
* he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial
* he was issued an under other than honorable conditions discharge
* he had lost time from 12 April through 14 April 1982, 4 January through 
3 February 1984, and from 14 May through 4 September 1984
 
12.  On 21 July 1998, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent 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 under other than honorable conditions is normally considered appropriate.

   a.  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.

   b.  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 request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  His record shows he was charged due to 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.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on his extended period of time lost, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20120021590



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