IN THE CASE OF:  

		BOARD DATE:  11 July 2013

		DOCKET NUMBER:  AR20120022971


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 he received his discharge, he was told his discharge would turn into an honorable discharge 
* then later he was informed he would have to apply for a discharge upgrade in order to receive benefits
* he is a veteran and he served over 180 days on active duty – he would like to receive the benefits he is entitled to 

3.  The applicant provides no additional evidence in support of his request.

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 17 October 1978.  He completed initial entry training and was awarded military occupational specialty 12B (Combat Engineer).  

3.  On or about 28 June 1980, he was assigned to the 12th Engineer Battalion, 8th Infantry Division, in the Federal Republic of Germany.

4.  On 25 February 1981, court-martial charges were preferred against him for absenting himself from his organization (absent without leave (AWOL)), from on or about 24 October 1980 through on or about 13 January 1981.

5.  On 25 February 1981, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service – in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may 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.  He elected not to submit a statement in his own behalf.

7.  On 18 March 1981, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  

8.  On 27 March 1981, he was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and he was issued an under other than honorable conditions character of service.  

9.  On or about 6 March 1986, the Army Discharge Review Board denied his request for an upgrade of his discharge.

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

   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 an under honorable conditions (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.  

   c. 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, a discharge under other than honorable conditions is normally considered appropriate.

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 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.

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 either an honorable or an under honorable conditions (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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20120022971



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