DOCKET NUMBER:  AR20120022955 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states he was involved in an automobile accident while on leave which caused him to have emotional and physical injuries.  He could not make rational decisions and ended up going absent without leave (AWOL).  The accident was not taken into consideration during his court-martial or subsequent discharge.  The residuals of this accident still affect him and his judgment.  

3.  The applicant provides no additional 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 19 October 1976, he enlisted in the Regular Army for 4 years.  On 
11 March 1980, he was promoted to specialist five (SP5).  On 30 April 1980, he immediately reenlisted for 3 years.  

3.  On 12 December 1980, court-martial charges were preferred against him for being AWOL from on or about 1 September 1980 until on or about 3 December 1980.

4.  His complete separation processing package was not available for review.

5.  His service medical records do not show any treatment for emotional or physical injuries he may have received as a result of an automobile accident.

6.  On 11 March 1981, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of conduct triable by court-martial.  He completed a total of 4 years, 
1 month, and 21 days of active service.  He had 92 days of time lost.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an Under Other Than Honorable Conditions Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  
	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he suffered emotional and physical injuries as a result of an automobile accident while on leave.  A review of his service medical records does not show any treatment for these injuries.  He has not provided any substantive evidence to support his contention.  Therefore, his contentions cannot be considered as mitigating factors in the determination of his case.

2.  Although his complete separation package was not available for review with this case, in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, he would have been required to consult with defense counsel and to have voluntarily and in writing requested separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted he was guilty of the offense he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

3.  He was discharged based on his request for separation in lieu of court-martial. Therefore, his contention that his accident was not taken into consideration during his court-martial is without merit in that a court-martial never took place.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate.

5.  The applicant had been promoted to SP5, a position of authority and responsibility.  In promoting him to SP5, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a SP5, he was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  He violated this special trust and confidence.  

6.  He had 92 days of time lost during his second enlistment.  Therefore, based on the length of his AWOL and the fact he was a SP5 at the time his service was unsatisfactory.  



7.  In view of the above, there is an insufficient basis upon which to upgrade his discharge to an honorable or a general under honorable conditions 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)                                         AR20120022955



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ABCMR Record of Proceedings (cont)                                         AR20120022955



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