IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021867 


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 a general discharge.

2.  The applicant states:

* he was discharged in 1977 with an under other than honorable discharge due to a mishap in circumstances
* he is trying to obtain employment with the State of Illinois and he passed all the required testing but his discharge may affect to the outcome of their ultimate decision
* his veteran status has been helpful in the past as he was employed at a medical center for 2 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 enlisted in the Army National Guard on 20 February 1976 for a period of 6 years.  He was ordered to active duty for training on 18 July 1976 for a period of 18 weeks or completion of military occupational specialty (MOS) training.  He successfully completed basic combat training; however, while in advanced individual training, he went absent without leave (AWOL) on 
12 October 1976.  Orders show he was discharged from the Army National Guard on 18 November 1976 with a general discharge.

3.  Records show, while in an AWOL status, the applicant was ordered to active duty on 19 November 1976.

4.  Records show the applicant surrendered to military authorities on 1 August 1977.  On 11 August 1977, charges were preferred against the applicant for being AWOL from 19 November 1976 to 1 August 1977.

5.  On 11 August 1977, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable 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 laws.  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 stated he did not like the Army, his problems at home impaired his ability to serve, he could not get along with Soldiers he was stationed with, and he had several job opportunities waiting for him on the outside.

6.  On 30 August 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.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 16 September 1977 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 4 months and 10 days of creditable active service with 255 days of time lost.

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 3-7b, 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 Board does not upgrade a discharge for the purpose of obtaining employment opportunities.

2.  The applicant's record of service included 255 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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.

5.  In view of the foregoing, 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)                                         AR20090021867



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021867



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1