IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20100000725 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, while he was assigned in Germany he was notified that his brother was murdered.  He went home on leave and returned to Germany.  He was reassigned to Fort Stewart, Georgia.  During that time his mother became sick and he requested an early separation through his company commander.

3.  The applicant states that his company commander agreed to submit the paperwork.  He went home to be with his mother and waited for the paperwork for the early separation.  The applicant states that he tried to contact his company commander without success.  The applicant states that he was later apprehended at the home of his mother and returned to military control.  The applicant states that he is now homeless and needs his discharge upgraded to obtain Department of Veterans Affairs (VA) benefits.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 January 1983 and a VA Form 21-4138 (Statement in Support of Claim), dated 22 October 2009.





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 Regular Army on 1 July 1980 and successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman).

3.  On 13 January 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for operating a motor vehicle without a valid operator permit.

4.  On 12 August 1982, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) for the period 7 August 1982 through 9 August 1982.

5.  The evidence of record shows the applicant was AWOL for the period 18 August 1982 through 23 August 1982.

6.  On 29 August 1982, the applicant accepted NJP under Article 15, UCMJ, for failure to be at his appointed place of duty.

7.  The evidence of record shows the applicant was AWOL for the period 16 September 1982 through 24 December 1982.

8.  The applicant's court-martial charge sheet is not available.






9.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows he was discharged on 27 January 1983 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service with an undesirable discharge and service characterized as under other than honorable conditions.  The applicant completed a total of 2 years, 3 months, and 9 days of creditable active service with 87 days lost due to being AWOL.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

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.  There is no evidence and the applicant has not provided evidence to confirm his mother's illness or any attempts he may have made to solicit assistance.

2.  The applicant's administrative separation is presumed to have been accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of 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 that he received three Articles 15 and had three instances of AWOL.  He had completed 2 years, 3 months, and 9 days of creditable active service with a total of 87 days lost due to 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 issuance of an upgraded 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)                                         AR20100000687



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)