IN THE CASE OF:	  

		BOARD DATE:	    20 May 2010

		DOCKET NUMBER:  AR20090018940 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states:

* he went absent without leave (AWOL) due to marital problems
* he was young and in love
* at the time in question he was abusing alcohol
* he needs his discharge upgraded so he can obtain medical treatment from the Department of Veterans Affairs (DVA)

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* enlistment documents
* DA Form 2-1 (Personnel Qualification Record) 

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 was born on 25 November 1953.  He enlisted in the Regular Army on 16 January 1978 for a period of 3 years.  He successfully completed basic combat training and advanced individual training and was awarded military occupational specialty 76W (petroleum supply specialist).

3.  On 30 May 1979, nonjudicial punishment was imposed against the applicant for two specifications of failure to repair.  His punishment consisted of a forfeiture of pay and extra duty.

4.  On 10 October 1979, nonjudicial punishment was imposed against the applicant for being AWOL from 17 August 1979 to 13 September 1979.  His punishment consisted of a reduction to pay grade E-2, a forfeiture of pay (suspended), and extra duty.

5.  Records show the applicant went AWOL on 8 December 1979 and he was apprehended by civil authorities and returned to military authorities on 17 March 1980.

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 shows he was discharged under other than honorable conditions on 21 April 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 1 year, 10 months, and 24 days of creditable active service with 132 days of lost time.

7.  There is no evidence of record which shows the applicant was diagnosed with alcohol abuse or dependency prior to his discharge.

8.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  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.

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.  Marital problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show the applicant sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to going AWOL.

2.  Age is not a sufficiently mitigating factor.  The applicant was 24 years old when he enlisted and he completed his training.  

3.  A discharge is not upgraded for the purpose of obtaining DVA benefits.  

4.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.






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)                                         AR20090018940



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ABCMR Record of Proceedings (cont)                                         AR20090018940



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