IN THE CASE OF:	  

		BOARD DATE:	    29 June 2010

		DOCKET NUMBER:  AR20090020655 


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 that his discharge be upgraded to an honorable discharge.

2.  The applicant states that it has been 32 years since his discharge from active duty.  While deployed to Germany his mother died and left his two under age sisters without care.  When he returned home for the funeral he could not return to duty and leave his sisters.  He adds that he was unaware that he could not receive benefits due to his discharge status, but he wants the Board to know that he did not willfully go absent without leave (AWOL).

3.  The applicant provides no additional documents 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 military personnel records show he enlisted in the Regular Army on 11 December 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16P (Short Range Missile Crewman).  The highest grade he attained was pay grade E-4. 

3.  On 29 June 1976, the applicant received nonjudicial punishment for wrongfully having in his possession 15 grams more or less of marijuana and one clip containing residue of marijuana.  His imposed punishment was a forfeiture of $65.00 pay.

4.  The applicant’s military record shows the applicant went AWOL from on or about 6 November 1977 to 4 December 1977.  However, the particulars surrounding the incident are missing from his file.  

5.  On 10 April 1980, court-martial charges were preferred against the applicant for being AWOL from 16 December 1977 to 4 April 1980.

6.  On 11 April 1980, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service because of being AWOL from 16 December 1977 to 4 April 1980.  The applicant acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will

* guilty of the offense with which he was charged

* afforded the opportunity to speak with counsel prior to making this request

   * advised he may be furnished an under other than honorable conditions discharge

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and he: 

* would be deprived of many or all Army benefits

* may be ineligible for many or all Veterans Administration benefits

8.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the: 
* basis for his contemplated trial by court-martial

   * maximum permissible punishment authorized under the Uniform Code of Military Justice

* possible effects of a discharge under other than honorable conditions

* procedures and rights available to him

* the applicant did not submit a statement in his behalf

9.  On 25 April 1980, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the applicant be furnished a discharge under other than honorable conditions and be reduced to private (PV1)/E-1.

10.  On 9 May 1980, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with a character of service as under other than honorable conditions.  He had completed 2 years and 12 days of net active service.

11.  There is no indication 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, 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.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

14.  Army Regulation 635-200, paragraph 3-7b, states 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 contentions that his under other than honorable conditions discharge should be upgraded to an honorable discharge because his mother died and he had to take care of his two younger sisters were carefully considered.  However, there is no evidence and the applicant did not provide any evidence which supports his contentions.   

2.  The evidence of record shows that the applicant went AWOL on two occasions; however, there is no evidence that he tried to inform his chain of command concerning his family problems before or after going AWOL.  Instead the applicant chose one of the least favorable means which subsequently led to his voluntary discharge in lieu of court-martial.  In addition, he also had prior misconduct, consisting of wrongful possession of an illegal drug.

3.  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.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of establishing eligibility for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  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; therefore, there is insufficient basis to upgrade the applicant's discharge to either an honorable or 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)                                         AR20090020655



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ABCMR Record of Proceedings (cont)                                         AR20090020655



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