BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120022412 


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 to a general, under honorable conditions discharge.

2.  He states he witnessed a murder while he was on leave in Hot Springs, AR in November 1979.  The victim's head was shot off.  He states he has suffered long enough.

3.  He provides no documentary evidence in support of his application.

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 28 November 1978, the applicant enlisted in the Regular Army.

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) beginning on 8 October 1979.  Item 35 (Record of Assignments) shows he was dropped from the rolls on 6 November 1979.

4.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows he returned to military control on 17 November 1979 at Hot Springs, AR.  

5.  On 11 December 1979, he underwent a mental status examination.  He was psychiatrically cleared for any administrative action deemed appropriate by his commander.

6.  A DD Form 458 (Charge Sheet) shows, on 18 December 1979, he was charged with being AWOL from his unit in Germany from on or about 8 October to on or about 5 December 1979.

7.  On 18 December 1979, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  

8.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He acknowledged:

	a.  by submitting the request, he was acknowledging he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge;

	b.  under no circumstances did he desire further rehabilitation as he had no desire to perform further military service;

	c.  he understood that as a result of his request he could be discharged under other than honorable conditions;

	d.  as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he 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 Federal and State law; and
 
	e.  he understood he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

9.  On 17 January 1980, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, and directed he receive an Under Other than Honorable Conditions Discharge Certificate.  On 24 January 1980, he was discharged as directed.  The DD Form 214 issued at that time shows his service was characterized as under other than honorable conditions.

10.  The available records are void of documentation showing the applicant witnessed a murder.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 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.

	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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

3.  In addition, he went AWOL in October 1979, and he contends he witnessed the murder in November 1979, while he was AWOL.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to 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)                                         AR20120022412





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ABCMR Record of Proceedings (cont)                                         AR20120022412



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