IN THE CASE OF:	  

		BOARD DATE:	      24 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090008008 


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 general discharge.

2.  The applicant states that he went absent without leave (AWOL) due to personal problems at home (i.e., his mother had a stroke and his fiancée was cheating on him).  He contends that since his discharge he has acted in a mature and responsible manner, that he has maintained employment, that he has been married for 27 years and has 3 children, and that he is a productive member of society. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 24 June 1980.  He was awarded military occupational specialty 13F (fire support specialist).

3.  On 1 December 1981, the applicant went AWOL and returned to military control on 25 August 1982.

4.  On 26 August 1982, the applicant stated during an interview that he went AWOL because he was not able to handle military life.

5.  On 27 August 1982, charges were preferred against the applicant for the AWOL period.

6.  On 27 August 1982, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to not make a statement in his own behalf.

7.  On 7 September 1982, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 27 September 1982 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 1 year, 6 months, and 10 days of creditable active service with 267 days of lost time due to AWOL.

9.  On 4 June 1992, the Army Discharge Review Board denied the applicant's request for a general discharge.

10.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant now contends that he went AWOL due to personal problems, the evidence of record shows that on 26 August 1982 he indicated that he went AWOL because he could not handle military life.

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his personal problems within established Army procedures prior to going AWOL.

3.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  Since the applicant’s record of service included 267 days of lost time, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.



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)                                         AR20090008008



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008008



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1