BOARD DATE:	  22 September 2009

		DOCKET NUMBER:  AR20090006705 


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

2.  The applicant states that his brother's death caused great hardship to his mother and he needed to return home to assist her.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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's military records show that he enlisted in the Regular Army on 29 June 1973, was awarded the military occupational specialties of military police 
and correctional specialist, served continuously through reenlistments, and was promoted to pay grade E-5. 

3.  The applicant was absent without leave from 10 September 1985 to 13 January 1986.

4.  The applicant's discharge packet is not contained in his military records.  However, his DD Form 214 shows that he was discharged UOTHC on 4 March 1986 under the provisions of Army Regulation 635-200, Chapter 10.

5.  On 12 May 1987, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  In the ADRB's review of the case, the ADRB stated that the applicant requested discharge in lieu of court-martial for the good of the service, after consulting with counsel, on 20 February 1986; the applicant waived a physical examination; and his request was approved by the appropriate authority.

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.

7.  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.  

8.  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.  There is no evidence that the applicant's brother died, that his mother required his assistance because of his brother's death, or that he reported having any such problem while on active duty.

2.  However, even if there was evidence to support the applicant's contentions, it would not form the basis for granting his request.  The applicant was a sergeant with 12 years of active duty.  He was also a military policeman.  He would be expected to know how to apply for a compassionate reassignment or discharge based on hardship.

3.  As such, there are no mitigating factors in the applicant's 126 days of AWOL.

4.  Such a lengthy period of AWOL is serious misconduct and certainly warranted a discharge UOTHC.  The quality of his service does not meet the criteria for issuance of either an honorable or general discharge.

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)                                         AR20090006705



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ABCMR Record of Proceedings (cont)                                         AR20090006705


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