IN THE CASE OF:	  

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090021072 


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 honorable.

2.  The applicant states:

* He served for almost 2 years
* He was young at the time
* He is sorry
* He went absent without leave (AWOL) because his father was very sick and he wanted to go home
* People make mistakes when they are young
* He was a good Soldier
* After his discharge he worked for a company for 7 years and then he opened his own roofing company and has been in business for 25 years

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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.  The applicant was born on 5 July 1957.  He enlisted in the Regular Army on 21 October 1975 for a period of 4 years.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (light weapons infantryman).  He attained the rank/grade of specialist four (SP4)/E-4 on 1 April 1977.

3.  On 10 June 1977, the applicant went AWOL and returned to military control on 1 August 1977.  On 17 August 1977, charges were preferred against the applicant for his period of AWOL.  Trial by special court-martial was recommended.

4.  On 17 August 1977, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he requested a chapter 10 discharge because his parents were sick and he went AWOL to see if he could help them.  He also stated before he went AWOL he tried to get a chapter 5 [Separation for the Convenience of the Government] or a chapter 6 [Separation Because of Dependency or Hardship].

5.  On 22 August 1977, the applicant's unit commander recommended he be discharged for the good of the service - in lieu court-martial and issued a general discharge.  On 26 August 1977, the intermediate commander indicated the applicant was counseled on his request for discharge, the applicant stated his 


decision was not impulsive but well thought out, and the applicant was aware of the ramifications of the proceedings and consequences of a general discharge but still desired elimination from the service.  The intermediate commander stated the applicant's performance of duty and appearance had been average prior to his AWOL and he recommended approval of the applicant's request for discharge with the issuance of a general discharge.

6.  On 13 September 1977, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.  He noted the applicant's service was below the acceptable standards of the Army and this character of service resulted from his demonstrated misconduct and his failure to expend reasonable effort in his own behalf.

7.  Accordingly, on 19 September 1977, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had served 1 year, 9 months, and 18 days of creditable active service with 51 days of lost time.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge 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, 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.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed basic combat and advanced individual training.

2.  Since the applicant’s record of service included 51 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090021072



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ABCMR Record of Proceedings (cont)                                         AR20090021072



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