IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090012617 


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, in effect, that his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that due to his current economic and health situation, he is in need of health care.

3.  The applicant provides no additional documents 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’s record shows he enlisted in the Regular Army and entered active duty on 31 December 1976.  

3.  On 7 March 1977, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 23 February to 27 February 1977.  His punishment consisted of a forfeiture of $87.00 pay and 14 days of extra duty.

4.  On 8 August 1977, the applicant underwent a physical examination and was medically cleared for separation.

5.  On 11 August 1977, charges were preferred against the applicant for being AWOL from 26 April to 1 August 1977.

6.  On 11 August 1977, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.

7.  On the same date, the applicant signed a request for discharge.  He indicated that he was making the request under his own free will and that he was afforded the opportunity to speak with counsel.  He acknowledged that he understood that he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant submitted a statement in his own behalf in which he indicated that he did not like the Army and he wanted out. 

8.  On 30 August 1977, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial. 

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows that he was discharged under other than honorable conditions on 
16 September 1977.  The applicant had completed a total of 5 months and
7 days of creditable service with 101 days of time lost due to being AWOL.  

10.  On 29 June 1979, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB denied his appeal on 
16 December 1980 citing that the board determined he was properly discharged.




11.  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 charge has 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.  

12.  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.

13.  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.  Evidence of record shows the applicant’s request for separation under the provisions of Chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  

2.  The fact that the applicant is currently experiencing an economic situation and is in need of health care is unfortunate.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.  

3.  The applicant’s record shows he received nonjudicial punishment for a short period of being AWOL and that charges were preferred against him after he accrued in excess of 100 days of lost time due to being AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis to upgrade the applicant's 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.



      _______ _   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)                                         AR20090012617



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ABCMR Record of Proceedings (cont)                                         AR20090012617



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