IN THE CASE OF:	  

		BOARD DATE:	  1 JULY 2010

		DOCKET NUMBER:  AR20090021578 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states that he served honorably in initial entry training (IET).  However, he injured his foot and was put in a wooden boot.  He was given physical profile restrictions which precluded him from performing his duties as an infantryman.  This gave him too much time with nothing to do so he started drinking.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge 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’s military records show he enlisted in the Regular Army on 
16 August 1979 and he was awarded the military occupational specialty of infantryman.

3.  On 4 December 1979, the applicant was given physical profile restrictions for stress fractures to his feet.  The profile was to be automatically terminated on 4 March 1980.

4.  On 14 January 1980, the applicant's duty status was changed from ordinary leave to confinement by civilian authorities.  It was stated that the applicant was arrested for driving under the influence, convicted of the offense, and sentenced to 12 days in confinement or a $120.00 fine.

5.  On 22 October 1980, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 25 March to 14 October 1980.

6.  On 22 October 1980, the applicant requested discharge in lieu of trial by court-martial.  In the request he acknowledged he could receive a UOTHC discharge if his request was approved.

7.  In an endorsement, dated 24 October 1980, the Personnel Control Facility (PCF) commander stated that he personally interviewed the applicant who stated that his AWOL was due to a combination of family problems and his inability to adjust to military life.  The applicant explained that he disliked being told what to do and being required to wear the uniform.  Once he completed IET, he learned that his mother was experiencing problems due to the fact that she is crippled and unable to work.  He applied for a hardship discharge but his request was denied.  Therefore, due to concern for his mother and his dissatisfaction with the Army he departed AWOL.  He had found civilian employment and he needed to return to that job as soon as possible.

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 3-7a, 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.

10.  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.  Contrary to the applicant's contentions, he told the PCF commander that he went AWOL because he disliked being told what to do, being required to wear the uniform, and that his mother was experiencing problems due to the fact that she was crippled and unable to work.  He had applied for a hardship discharge but his request was denied.  

2.  It is noted that the applicant's physical profile restrictions had expired prior to the applicant departing AWOL.

3.  As such, the applicant has not submitted any matters of mitigation for his lengthy period of AWOL.

4.  In view of the foregoing, 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)                                         AR20090021578



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ABCMR Record of Proceedings (cont)                                         AR20090021578



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