IN THE CASE OF:
BOARD DATE: 31 July 2008
DOCKET NUMBER: AR20080006648
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, in effect, that his undesirable discharge be upgraded to a general discharge.
2. The applicant states that he was being processed for a general discharge to allow him to go home to deal with family problems. He was assured at that time that he was going to be issued a general discharge. He did not notice the error until he needed treatment for a serious medical condition.
3. The applicant provides a copy of his separation document (DD Form 214).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 3 August 1977, was awarded the military occupational specialty of cannon crewman, and was promoted to pay grade E-2.
3. On 13 July 1978, the applicant submitted a request for discharge in lieu of court-martial for the good of the service for being absent without leave (AWOL) from 3 May to 29 June 1978. In that request he stated I understand that, if my request for discharge is accepted, I may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate . . . and that, as a result of the issuance of such a discharge, I will be deprived of many or all Army benefits, that I may be ineligible for many or all benefits administered by the Veterans Administration . . .
4. The applicant submitted a statement when he submitted his request for discharge. In that statement he said he was 18 years old with a 9th grade education, that his parents pressured him into joining the Army, that he wasnt given any choice in his MOS, that his parents were having problems, that his wife separated from him, that he started using drugs and then quit using drugs, and that he had a 1-year old daughter and another child on the way.
5. The applicants request was approved by the appropriate authority and he was discharged under other than honorable conditions on 29 August 1978. He had 11 months and 1 day of creditable service.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. Contrary to the applicants contention, he acknowledged that he could receive a discharge under other than honorable conditions and such a discharge may deprive him of VA benefits.
2. While the applicant said that he was experiencing a number of personal problems when he requested discharge, he did not, and has not, submitted any documentation to substantiate his problems.
3. The applicants lengthy period of AWOL warranted a discharge under other than honorable conditions.
4. As such, there is no basis for granting the applicants request.
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) AR20080006648
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ABCMR Record of Proceedings (cont) AR20080006648
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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