IN THE CASE OF:	 

		BOARD DATE:	  02 March 2010

		DOCKET NUMBER:  AR20090015959 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse actions.

3.  The applicant provides no additional 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 Army National Guard (ARNG) on 8 May 1978 for a period of 6 years.  He was subsequently involuntarily ordered to active military service effective 7 January 1980 for a period of 20 months and 19 days.

3.  On 21 July 1980, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 18 January 1980 to 9 June 1980.  His punishment consisted of forfeiture of $200.00 per month for 2 months with $100.00 per month suspended for 90 days.

4.  On 16 June 1981, charges were preferred against the applicant for being AWOL from 6 January 1981 to 9 June 1981.

5.  The applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged 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 benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  In a handwritten statement the applicant indicated, in pertinent part,
"I can not stand the pressure that the Army has to offer."

6.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a characterization of service of under other than honorable conditions.

7.  On 6 July 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to the lowest enlisted grade.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 24 July 1981 in accordance with Army Regulation 635-200, chapter 10, for the good of the service, with service characterized as under other than honorable conditions.  At the time he had 

completed 8 months and 24 days of net active service this period.
Item 29 (Dates of Time Lost During This Period) shows he had time lost from
18 January - 8 June 1980 and from 6 January - 8 June 1981.

9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

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, 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.

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, 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.  The applicant contends, in effect, his under other than honorable conditions discharge should be upgraded because it was based on one isolated incident in 28 months of service, with no other adverse actions, and it was inequitable.

2.  The applicant's contention was carefully considered.

	a.  Records show the applicant's period of active duty was from 7 January 1980 to 24 July 1981, which equates to less than 19 months.

   b.  Records show the applicant was AWOL on two separate occasions
(i.e., from 18 January 1980 through 8 June 1980 and from 6 January 1981 through 8 June 1981).  Thus, the evidence of record refutes the applicant's contention that he had one isolated adverse incident during the period of his military service.

   c.  The applicant's two periods of AWOL equate to a total of 298 days of time lost (i.e., nearly 10 months).

   d.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090015959



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ABCMR Record of Proceedings (cont)                                         AR20090015959



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