IN THE CASE OF:	  

		BOARD DATE:	        18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018582 


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 that his discharge under other than honorable conditions be upgraded to a discharge under honorable conditions (general).

2.  The applicant states that his discharge was due to excessive absences without leave (AWOL) and alcohol abuse.  He states that in 1981, his grandmother died and his mother died shortly thereafter.  He states that when he went to his mother's funeral his wife had him served with papers for a divorce.  He states that his life was turned upside down and he tried to escape by drinking and finally he went AWOL.  He states that he has been alcohol free for a number of years now and that he has tried to be a responsible citizen.  He states that due to the character of his discharge, he has been frequently homeless and had to take labor pool type work.  He states that he would like to get a decent job, with medical and retirement benefits, but he is unable to do so without an honorable discharge.

3.  The applicant provides in support of his application, a cop of his Certificate of Release or Discharge from Active Duty (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 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.  After completing 8 months and 17 days of total prior active service, the applicant reenlisted in the Regular Army on 13 July 1979, for 3 years, in the pay grade of E-3.  He had successfully completed his training as a personnel records specialist.

3.  On 4 September 1981, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 29 July 1981 through 4 August 1981; failure to go to his appointed place of duty on 24 July 1981; failure to go to his appointed place of duty on 16 July 1981; uttering 8 bad checks; escaping lawful custody; and being AWOL from 7 August 1981 to 26 August 1981.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay in the amount of $200.00 (suspended for 60 days), restriction for 11 days and extra duty for 11 days.  The applicant opted not to submit an appeal to the NJP.

4.  On 9 September 1981, NJP was imposed against the applicant for breaking restriction.  His punishment consisted of a reduction to the pay grade of E-2.  He opted not to submit an appeal to the NJP.

5.  The applicant went AWOL on 14 October 1981 and he remained absent in desertion until he was apprehended by civil authorities on 28 September 1982 and returned to military control.

6.  On 20 October 1982, the applicant went AWOL and he remained absent in desertion until he was apprehended by civil authorities on 30 June 1983 and returned to military control.

7.  On 8 July 1983, the applicant was notified that charges were pending against him for being AWOL from 14 October 1981 until 28 September 1982 and from 20 October 1982 to 30 June 1983.  He acknowledged receipt of the notification and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated that he had no desire to have a separation physical or to submit a statement in his own behalf.

8.  The appropriate authority approved the request for discharge on 22 July 1983. Accordingly, on 18 August 1983, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 4 months and 17 days of net active service this period.

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.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.  Paragraph 3-7 also 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general discharge.  

2.  His contentions have been noted.  However, his contentions are not substantiated by the evidence of record.  His records show that he had NJP imposed against him twice for being AWOL and he had charges pending against him because he continued to go AWOL.  There is no evidence in the available record, nor has the applicant presented any evidence to support his contentions that he had a drinking problem while he was in the Army which was resulted in his numerous AWOL incidents.

3.  The applicant's record show that he went AWOL as a result of his acts of indiscipline and considering his overall record of service and the nature of his offenses, it does not appear that the characterization of his service is too harsh.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's 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.




      _______ _ XXX  _______   ___
               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)                                         AR20080018582



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ABCMR Record of Proceedings (cont)                                         AR20080018582



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