IN THE CASE OF:	  

		BOARD DATE:	       26 August 2009

		DOCKET NUMBER:  AR20090005306 


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 should be upgraded to allow him to make application for veterans’ benefits and assistance.  He states that he is 58 years and that he is having health problems.

3.  The applicant provides no additional documentation 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.  On 16 November 1974, the applicant enlisted in the Indiana Army National Guard (INARNG) for 6 years, in the pay grade of E-1.  He successfully completed his training as a motor transport operator and he was promoted through the ranks to the pay grade of E-4.

3.  Orders 12-1 were published on 28 October 1977 reducing the applicant to the pay grade of E-3, due to inefficiency without prejudice.

4.  Orders 2-1 were published on 13 February 1978 reducing him to the pay grade of E-2, due to inefficiency without prejudice.

5.  On 8 May 1978, the applicant was ordered to active duty effective 21 June 1978, for a period of 18 months and 11 days, for the purpose of performing involuntary active duty in accordance with Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).

6.  The applicant went absent without leave (AWOL) on 21 June 1978 and he remained absent in desertion until he surrendered to military authorities at Fort Knox, Kentucky, on 25 February 1979.

7.  On 2 March 1979, the applicant was notified that charges were pending against him for being AWOL from 21 June 1978 until 25 February 1979.  He acknowledged receipt of the notification on 2 March 1979 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.  

8.  Along with his request for discharge, the applicant submitted a statement contending that he was ordered to active duty because he stopped going to his weekend drills.  He stated that he stopped drilling because it was interfering with the job.  He stated that he requested a hardship discharge and that no one would even talk to him about it.  He stated that he wanted out of the Army; therefore, he just “quit going.”  He stated that another reason for wanting to get out of the Army was that he was having personal problems and that his military occupational specialty was changed from motor transport operator to equipment storage specialist.  The applicant concluded his statement asserting that he was requesting a chapter 10 discharge so he could be home with his family and for the benefit of the Army.

9.  The appropriate authority approved the request for discharge on 16 March 1979 and he directed the issuance of a discharge under other than honorable conditions.
10.  Accordingly, on 11 April 1979, 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 the lieu of trial by court-martial.  He had completed 7 months and 6 days of total active service and he had approximately 8 months and 4 days of lost time due to AWOL.

11.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

12.  Army Regulation 635-200 (Enlisted Personnel) 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.

13.  Army Regulation 635-200, paragraph 3-7a, of 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.  

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

2.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of 


trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  His records show that he had approximately 8 months and 4 days of lost time due to AWOL.  Considering the nature of his offenses, it does not appear that the character of his service is too harsh.  The applicant’s overall record of service is properly reflected in the type of discharge that he received.  The fact that he would like to apply for veterans’ benefits is not sufficiently mitigating to warrant the relief requested.

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.




      _______ _ 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)                                         AR20090005306



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ABCMR Record of Proceedings (cont)                                         AR20090005306



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