BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008230 


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 an honorable or a general discharge.

2.  The applicant states that he went absent without leave (AWOL) because his father was sick.  He states that upon his return from being AWOL he was told that he could either return to duty or be discharged.  He states that no one fully explained his options and that he was told that if he stayed out of trouble for 1 year, his discharge would be immediately upgraded.  He states that had he known otherwise, he would not have been discharged.

3.  The applicant provides a copy of 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.  On 10 July 1979, the applicant enlisted in the Regular Army in Richmond, Virginia, for 3 years, in the pay grade of E-1.  

3.  The applicant’s records show that he was in advanced individual training (AIT) when he went AWOL on 1 September 1979 and he remained absent in a desertion status until he surrendered to military authorities on 5 December 1979.  

4.  On 11 January 1980, after being advised of his rights, the applicant was interviewed regarding his reason for going AWOL.  During the interview, the applicant stated that he went AWOL for a combination of physical and family problems.  He stated he had been on a physical profile for his knee that had been operated on prior to his enlistment in the Army and that it hurt him to run.  He stated he was granted a 3-day pass to go home and when he got there he saw that his father could not take care of himself.  He stated that what prompted him to go AWOL was his father having a stroke and wrecking his car.  He stated he surrendered to military authorities because he was tired of looking over his shoulder.  The applicant stated he wanted to return home to care for his family and that he could not “soldier” with a “messed up” knee.

5.  On 11 January 1980, the applicant was notified that charges were pending against him for being AWOL.  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.  As part of his request for discharge, he acknowledged he understood the effects of a discharge under other than honorable conditions and that he would be deprived of many or all Army benefits.  He also acknowledged that he may be deprived of many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.

6.  The appropriate authority approved the request for discharge on 5 February 1980 and directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 21 February 1980, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had completed 4 months and 7 days of net active service and he had approximately 3 months and 4 days of lost time due to being AWOL. 

7.  On 2 November 1981, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

8.  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.

9.  Paragraph 3-7a of Army Regulation 635-200 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.  

10.  Paragraph 3-7b of Army Regulation 635-200 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 an honorable or a general discharge because he was told that his discharge would be immediately upgraded if he stayed out of trouble for 1-year.

2.  His contentions have been considered.  However, there is no evidence in the available records, nor has the applicant submitted any evidence to show he was told his discharge would be immediately upgraded if he stayed out of trouble for 1-year.  

3.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

4.  The applicant’s records show that at the time he submitted his request for discharge for the good of the service in lieu of trial by court-martial, he acknowledged that he understood the affects of a discharge under other than honorable conditions and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  

5.  The applicant’s contentions regarding his father’s illness has also been noted.  However, it is not sufficiently mitigated to warrant the requested relief.  There is no evidence in the available records that show the applicant sought assistance through his chain of command for any family problems that he may have been experiencing.  The applicant went AWOL for over 3 months and he remained absent in a desertion status until he surrendered to military authorities because he was “tired of looking over his shoulder.”  

6.  Considering the nature of the applicant’s offense, the type of discharge that he received appropriately reflects his overall record of service. 

7.  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)                                         AR20090008230



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ABCMR Record of Proceedings (cont)                                         AR20090008230



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