IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011883 


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.

2.  The applicant states that he was going through a divorce while stationed in Germany and since they had children he was allowed to return stateside to handle his affairs.  He contends that the courts were backed up and could not get him a date that was satisfactory with the Army.  He goes on to state that he was given orders to return to Germany and since he could not trust his wife with his children and he did not have any family to ensure that she did not run off with them, he went absent without leave (AWOL).  He claims the day he got his matters in hand he turned himself in and accepted responsibility for his actions.  He does not believe the special circumstances were given enough thought when he received his disciplinary action.  He points out that he has three prior honorable discharges from the Army and he believes his service warrants a higher discharge than he received.

3.  The applicant provides no documentary evidence 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 19 September 1975 for a period of 4 years.  He extended his enlistment on 9 August 1977 for a period of 12 months.  On 30 October 1980, the applicant was honorably discharged for immediate reenlistment.  He reenlisted on 31 October 1980 for a period of 3 years.  He attained the rank of staff sergeant on 16 February 1982.  On 
23 February 1983, he was honorably discharged for immediate reenlistment.  He reenlisted on 24 February 1983 for a period of 5 years.

3.  The applicant went AWOL on 18 March 1984 and returned to military control on 17 May 1984.

4.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 11 October 1984 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 8 years, 10 months, and 18 days of creditable active service with 66 days of lost time due to being AWOL (from 16 June 1976 to 21 June 1976 and 18 March 1984 to 
16 May 1984).

5.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  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 the applicant sought assistance from his chain of command or chaplain in a way to resolve his problems within established Army procedures prior to going AWOL.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

BOARD VOTE:

____X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090011883





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ABCMR Record of Proceedings (cont)                                         AR20090011883



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