IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080008525 


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 an upgrade of his discharge to a general discharge.  

2.  The applicant states, in effect, that he went on emergency leave, because his only son was in the hospital.  He did not make it back before his leave was up.  He states, again that his son was very ill and he could not leave him at that time. Medical records of his son being in the hospital were lost.   

3.  The applicant provides no additional documents 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.  The applicant reenlisted in the Regular Army on 26 September 1976, with 
2 years and 3 months of prior honorably service, at the time of his reenlistment the applicant’s pay grade was E-4.  His military occupational specialty was 11B (Infantryman).  On 30 September 1976, the applicant was promoted to sergeant pay grade E-5. 

3.  On 20 June 1977, the applicant was reported for being absent without leave (AWOL); he was apprehended by civilian authorities on 23 September 1977.    

4.  On 27 September 1977, a Report of Medical Examination found the applicant fit for retention or separation from service.  

5.  On 28 September 1977, court-martial charges were preferred against the applicant for being AWOL from 20 June to 22 September 1977.  

6.  On the same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under conditions other than honorable and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, the request was made of his own free will and he was not coerced into making the request.  The applicant understood that by submitting the request for discharge, he acknowledged that he was guilty of the charge against him.  He also acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of discharge under other than honorable conditions (UOTHC).  The applicant did not submit a statement in his own behalf.

7.  On 4 October 1977, the applicant’s unit commander conducted a short interview with the applicant.  The interview revealed that the applicant was 
24 years old, divorced with no dependents and the applicant stated he was AWOL due to personal problems.  The applicant also stated that he had become disillusioned with the military.  On the same day, the applicant’s unit commander recommended approval of the applicant’s request for discharge under the provision of chapter 10, Army Regulation 635-200, with a UOTHC discharge.  The applicant’s commander believed that rehabilitation efforts would be considered futile in this case.

8.  On 12 October 1977, the separation authority approved the applicant’s request, directed that the applicant be reduced to the lowest enlisted grade, that he be discharged under the provisions of Army Regulation 635-200, Chapter 
10 and that he receive a discharge under other than honorable conditions.  On 
19 October 1977, the applicant was discharged accordingly.  The discharge document (DD Form 214) he was issued confirms he completed a total of 
9 months and 21 days of creditable active military service during this enlistment and he had 94 days of lost time.  

9.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

10.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his only son was in the hospital and he did not make it back to his unit in time because he could not leave his son was carefully considered and found to be insufficient in merit.  There is no evidence that the applicant was on emergency leave or that he told his superiors or anyone that he was having personal problems before going AWOL.  The applicant’s record does not support his claims and the applicant did not provide any evidence to support his claim. 

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion, duress or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.   

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service.  

4.  Therefore, in view of the foregoing, there is no basis for granting the request. 

5.  In order to justify correction of a military record the evidence must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The evidence submitted did not satisfy this requirement.

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)                                         AR20080008525



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ABCMR Record of Proceedings (cont)                                         AR20080008525



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