IN THE CASE OF:	

		BOARD DATE:	  04 May 2010 

		DOCKET NUMBER:  AR20090018280 


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 that his aunt passed away approximately 3 months before his normal discharge.  He adds that his grandparents and aunt raised him while his father served in the military.  The applicant offers that he requested a leave of absence from duty while stationed at Fort Knox, KY, but it was denied.  He states that he made a mistake that he now regrets.

3.  The applicant does not provide any additional 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's record shows he enlisted in the Regular Army on 4 March 1975.

3.  On 8 July 1975, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 23 June 1975 to 29 June 1975.  His punishment consisted of a forfeiture of $75.00 pay per month for 1 month.

4.  On 8 February 1979, court-martial charges were preferred against the applicant for being AWOL from 1 February 1978 to 22 January 1979.

5.  On 12 February 1979, the applicant consulted with his counsel and requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel, chapter 10, for the good of the service in lieu of trial by court-martial.

6.  The applicant signed his request for discharge which shows he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Under Other Than Honorable Conditions Discharge Certificate; 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 discharge under other than honorable conditions.  The applicant elected not to provide a statement in his behalf.

7.  On 26 February 1979, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  The applicant's DD Form 214 (Report of Separation from Active Duty) for the period ending 23 March 1979 shows that he was discharged with an under other than honorable conditions discharge.  He was credited with 3 years and 29 days of total active service.

9.  On 9 January 1984, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB denied his appeal on 
11 October 1984 citing that the board determined he was properly and equitably discharged.

10.  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.

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 contends that the death of his aunt and the command's denial of his leave led to his AWOL.  However, there is no evidence and the applicant has not provided any to show that he was denied emergency leave for the death and/or illness of his aunt.  Therefore, this contention is not supported by evidence of record.

2.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.

3.  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 unsatisfactory.  Therefore, he is not entitled to a general 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)                                         AR20090018280



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ABCMR Record of Proceedings (cont)                                         AR20090018280



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