IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090002938 


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, in effect, that at the time of his separation he was not aware of the type of discharge he was receiving.

3.  The applicant provides no additional documentation in support of this case.

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 was born on 19 March 1951.  He was inducted into the Army of the United States on 9 April 1970 and successfully completed basic combat and advanced individual training.  As a result he was awarded military occupational specialty (MOS) 72B (Communication Center Specialist).

3.  On 11 December 1971, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed 1 year,
8 months, 3 days of creditable active service.

4.  On 30 November 1973, the applicant enlisted in the Regular Army (RA).

5.  On 5 August 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

6.  A DD Form 458 (Charge Sheet), dated 31 August 1977, shows charges were preferred against the applicant for being absent without leave (AWOL) for the period from 18 March 1977 through 23 August 1977.

7.  On 8 September 1977, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; 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 may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide statements on his own behalf.

8.  The applicant submitted a statement in his own behalf that stated, in effect, that he was not satisfied with the Army.  He stated that his first AWOL could not be avoided because on the day his leave ended he was in a very serious car accident.  He was treated at the Maxwell Air Force Hospital [in Montgomery, Alabama] and continued in an out-patient status for two weeks.  Subsequently, he was apprehended by the civil authorities and placed on bond.

9.  The applicant further states that his attitude worsened after he failed to get assistance from his chain of command.  He was tired of being trampled over as a result of his court-martial being overturned.  He went AWOL to save his home but due to the lack of communication and concern from the Army in assisting him he lost his home, and his wife and children were put out on the street.
10.  On 14 November 1977, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 30 November 1977, the applicant was discharged accordingly.  The applicant had completed
3 years, 6 months, and 26 days of creditable active service during that enlistment with 158 days of lost due to being AWOL.

11.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that at the time of his discharge he was not aware of the type of discharge he was receiving.  Records show that a competent counsel properly advised him and that he fully understood the consequences of the discharge that he requested.  If he had concerns about the type of discharge, he could have addressed those concerns with his counsel or by the statement with his discharge request; however, he elected not to do so.  Therefore, there is no basis for this argument.

2.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The applicant's records show that he received one Article 15 and had one instance of a lengthy AWOL.  He had completed 3 years, 6 months, and 26 days of his enlistment obligation with a total of 158 days of lost time due to being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090002938



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ABCMR Record of Proceedings (cont)                                         AR20090002938



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