IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090018047 


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 discharge under honorable conditions.

2.  The applicant states that he had to leave the service to take care of his seriously ill mother and an uncle.  As the eldest child, the applicant states it was his responsibility to step up and provide for them.

3.  The applicant did not provide any supporting documents with 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 20 April 1982 for 3 years.  He completed basic and advanced individual training meeting the qualification standards for military occupational specialty 63N (M60A1/A3 Tank System Mechanic).  The highest rank the applicant satisfactorily held was private first class/pay grade E-3.

3.  On 10 October 1982, the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 63rd Armor Regiment, and stationed at Fort Riley, KS.  On 28 May 1984, his unit reported his attendance status as being absent without leave (AWOL).

4.  There are no disciplinary records available in the applicant's official military personnel file.

5.  On 1 August 1984, court-martial charges were preferred against the applicant for being absent without leave from his unit on 28 May 1984 through 25 July 1984 when he returned to military control.

6.  On 1 August 1984, the applicant consulted with legal counsel and he 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 that were 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, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

7.  In his request for discharge, the applicant indicated that he understood that if his discharge request were approved 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, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge and recommended issuance of an under other than honorable conditions discharge.  The immediate commander stated he interviewed the applicant after he returned to military control.  In the interview, the applicant said he left his unit because he was experiencing extreme marital problems.  When he returned from a lengthy field exercise, he found his wife had departed.

9.  On 4 October 1984, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be discharged with an under other than honorable conditions discharge.

10.  On 19 October 1984, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged with an under other than honorable conditions discharge.  This form further confirms that he completed 2 years, 4 months, and 3 days of net active service with time lost from 28 May 1984 to 24 July 1984.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.

13.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offense chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL offense of 30 days or more.

14.  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.

15.  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 that as the eldest child he had a responsibility to care for his extremely ill mother and uncle.  Their poor health led him to leave the Army so he could attend to them.  He contends that his under other than honorable conditions discharge should be upgraded to a general discharge under honorable conditions.

2.  Based on the evidence of record, the applicant was AWOL because he was experiencing extreme marital problems and not because of his mother's illness as he currently contends in his application.

3.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

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 that requirement.

5.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general under honorable conditions 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)                                         AR20090018047



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ABCMR Record of Proceedings (cont)                                         AR20090018047



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