BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090021247 


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.

2.  The applicant states that at the time of his discharge he was 18 years old.  When he was very young, his mother was an alcoholic and lost custody of himself and two brothers.  He and his brothers had lived in foster homes most of their lives (over the years they lived in 20 different homes) and he had the responsibility of looking after his brothers.

3.  The applicant states that prior to his enlistment he had never traveled or was even separated from his brothers.  The reason he had two incidents of being absent without leave (AWOL) was to be with his brothers and helping them as they were growing up.

4.  The applicant provides copies of:

* his DD Form 214 (Report of Separation from Active Duty) for the period ending 27 September 1979
* his DA Form 2-1 (Personnel Qualification Record - Part II), prepared on 12 February 1979
* 
a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice], dated 23 May 1979
* four DD Forms 4187 (Personnel Action) with various dates
* his Request for Discharge for the Good of the Service letter, dated 5 September 1979

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 15 September 1959.  He enlisted in the Regular Army on 31 October 1978, at age 19, for a 3-year term of service.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 23 May 1979, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for being AWOL for the period 12 May 1979 through 21 May 1979.  His punishment included reduction to the rank/grade of private (PV1)/E-1, forfeiture of $50.00 for one month, and restriction and extra duty for 7 days.

4.  A DD Form 458 (Charge Sheet), dated 4 November 1979, shows charges were preferred against the applicant for being AWOL during the period 1 June 1979 through 22 August 1979.

5.  On 5 September 1979, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service - in lieu of court-martial.

6.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and issued an Under Other Honorable Conditions Discharge Certificate; that 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 law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  There is no evidence he submitted a statement in his own behalf.

7.  On 14 September 1979, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  On
27 September 1979, the applicant was discharged with a characterization of service of under other than honorable conditions.  The applicant had completed a total of 7 months and 25 days of creditable active service with 93 days of time lost.

8.  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.

9.  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 he was young at the time of his discharge.  However, he enlisted at age 19, he successfully completed all of his initial entry training, and he showed that he could function as a Soldier.  Therefore, there is no evidence he was any less mature than any other initial entry Soldier.

2.  The applicant contends he went AWOL to take care of his brothers.  However, there is no evidence in his available records that shows he sought any assistance from his chain of command, a chaplain, or other community support services personnel for help with his family situation before resorting to go AWOL. There is also no evidence to show he actually went AWOL to resolve any issues with his younger siblings.

3.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The applicant's records show he received one Article 15 and he had two instances of AWOL, one for a lengthy period.  He had completed 7 months and 25 days of service on his 3-year term of service before his separation with a total of 93 days of lost time due to being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuing a general discharge.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090021247



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ABCMR Record of Proceedings (cont)                                         AR20090021247



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