BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090016795 


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 upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge.

2.  The applicant states, in effect, he joined the Florida Army National Guard at the young age of 17 with the intent to either complete his tour or retire from the Army.  Upon his father's death on 4 July 1979, he went absent without leave (AWOL) only because he was denied leave.  He attributes this misconduct to his youth and a need to support his mother. 

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.  Records show he enlisted in the Army National Guard on 20 May 1979.  He trained in and was awarded military occupational specialty (MOS) 43B (Fabric Repair Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows the following in item 35 (Record of Assignments):
    
	a.  Ordered to Active Duty for Training (ADT), 4 September 1979
	b.  Completed Basic Training, 25 October 1979
	c.  Ordered to Advanced Individual Training, 26 October 1979
	d.  Absent without Leave, 11 December 1979
	e.  Confined by Civil Authorities, Aggravated Battery, 26 April 1980
	
4.  DD Form 458 (Charge Sheet) indicates he was charged for being AWOL during the period 11 December 1979 through 30 June 1980. 

5.  On 9 July 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested 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 (Personnel Separation - Enlisted Personnel).

6.  In his voluntary request for discharge, the applicant indicated he understood by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the  Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  The applicant's discharge packet shows he desired a discharge in order to assist his mother after his father's death and he was unwilling to complete his military obligation.

8.  On 22 July 1980, the separation authority approved the applicant's request for discharge and directed he receive an under other than honorable conditions discharge.  On 1 August 1980, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 1 month and 2 days of creditable active military service with 202 days of lost time due to AWOL.
9. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  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.

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.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to a general discharge was carefully considered.  While the circumstances provided by the applicant as the basis for his misconduct are unfortunate, they fail to provide a sufficient basis to warrant the upgrade of his discharge.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline which includes over 7 months of
AWOL time, the applicant's service clearly does not meet the standards of
acceptable conduct and performance of duty for Army personnel.  This
misconduct also renders his service unsatisfactory.  Therefore, the
applicant is not entitled to either a general or an honorable 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)                                         AR20090016795





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ABCMR Record of Proceedings (cont)                                         AR20090016795



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