IN THE CASE OF:	  

		BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120022181 


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 makes no statement.

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 4 December 1979, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP).  On 7 December 1979, he enlisted in the Regular Army for a 3-year period.  He completed training and was awarded military occupational specialty 19E (Armor Crewman).
3.  On 9 July 1980, the applicant went absent without leave (AWOL) and on 
10 August 1980, the applicant was dropped from the rolls.

4.  A DA Form 4187 (Personnel Action), dated 31 October 1980, shows the applicant was apprehended on 21 October 1980 by Henderson County, Tennessee civilian authorities who returned him to military control to same date.

5.  On 31 October 1980, AWOL charges for the period on or about 9 July 1980 until on or about 21 October 1980 were preferred against the applicant.

6.  The applicant's request for discharge under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, is not available.  However, records show that on 3 November 1980, the applicant and his counsel signed a statement:

* acknowledging the applicant knowingly, willingly, and voluntarily declared he was AWOL during the period 9 July 1980 to 21 October 1980
* the applicant made the admission for administrative purposes only so that he could process out of the Army and that he realized in doing so, he could be given an other than honorable discharge
* his defense counsel had explained to his complete understanding and satisfaction all the legal and social ramifications of that type of discharge and what it would mean to him in the future

7.  On 21 January 1981, the applicant was discharged with an under other than honorable conditions discharge.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with the narrative reason for separation as administrative discharge conduct triable by court-martial.

8.  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. 

9.  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 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.

	b.  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 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.

2.  Although his request for discharge under the provisions of Army Regulation 635-200, chapter 10, is not available, his records contain a properly-constituted DD Form 214 that identifies the reason and characterization of his separation on 21 January 1981.  This document carries with it a presumption of government regularity in the discharge process.

3.  Based on his overall record of indiscipline and due to the seriousness of the charges at the time, 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, there is no basis for upgrading the applicant's 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)                                         AR20120022181



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ABCMR Record of Proceedings (cont)                                         AR20120022181



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