IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100006963 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he needs help with his benefits from the Department of Veterans Affairs (VA).  He states he was an honor graduate from his advanced individual training (AIT) school at Fort Jackson, SC.  He married a woman who was not a good woman and he was trying to make two things work.  He tried to re-enter the military, but he was told that with the discharge that he has and the amount of time that he has been separated from the military it was impossible.

3.  The applicant provides a statement, dated 29 December 2009, from his current wife.

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 personnel records show he enlisted in the Regular Army on 14 November 1973 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 94B (Food Service Specialist).  On 23 August 1975, he was assigned to the 52nd U.S. Army Artillery Detachment in Germany.

3.  On 16 December 1975, the applicant was discharged for immediate reenlistment.  He had completed 2 years, 1 month, and 3 days of active service that was characterized as honorable.  On 17 December 1975, he reenlisted for a period of 6 years.

4.  On 22 November 1978, the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 77th Armor, Fort Carson, CO.

5.  On 15 March 1979, the applicant departed absent without leave (AWOL).  He was apprehended by civilian authorities in Montique, TX and returned to the Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill OK 
23 July 1979.  

6.  On 31 August 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 15 March to 23 July 1979.

7.  On 12 September 1979, the applicant was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 18th Field Artillery at Fort Sill, OK.  On 
19 September 1979, he departed AWOL.  He was apprehended by civilian authorities and returned to military control at Muenster, TX on 21 January 1980.

8.  On 31 January 1980, court-martial charges were preferred against the applicant for being AWOL from on or about 19 September 1979 to 21 January 1980.

9.  On 1 February 1980, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the elements of the offense he was charged with and he was making the request of his own free will, he acknowledged he was guilty of the offense with which he was charged, that he had been afforded the opportunity to speak with counsel prior to making this request and that he had been advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  In addition, the applicant acknowledged he was advised he may expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge.  He also acknowledged he understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all VA benefits, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  A captain, Judge Advocate General's Corps, countersigned the applicant's statement and indicated he had counseled the applicant concerning the basis for his contemplated trial by court-martial and of the maximum permissible punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge, if his request was approved, and of the procedures and rights that were available to him.

12.  On 21 February 1980, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and furnished an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 26 February 1980, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 by reason of discharge for the good of the service.  He had completed 3 years, 5 months, and 29 days of net active service that was characterized as under other than honorable conditions.  He had 254 days of lost time.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 28 April 1987, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that his service was properly characterized as under other than honorable conditions.

15.  The applicant's current wife's statement, dated 29 December 2009, described the injuries the applicant suffered to his ear and shoulder while in Germany.  She states the applicant has never been in any trouble, works hard, and gets along with others.  She states he is a good hearted person who tries to help other people when he can.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of this 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  

17.  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.

18.  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 his discharge under other than honorable conditions should be upgraded to an honorable discharge because he needs help with his VA benefits.  He contends he was having marital problems at the time of his discharge.

2.  The applicant has submitted no substantiative evidence showing his marital problems caused him to go AWOL on two occasions.  There is also no evidence to show he sought counseling to alleviate his marital problems.  Therefore, his contention is not considered mitigating and is not sufficient to warrant relief in his case.

3.  The applicant voluntarily requested discharge, admitted guilt to the AWOL offense for which he was charged, and acknowledged he understood he could receive an under other than honorable conditions discharge.  His request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  



4.  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.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.  The available evidence contains no indication of procedural or other errors that would have jeopardized his rights.

5.  The applicant did have almost 3 years of honorable service as evidenced by his honorable discharge on 16 December 1975.  However, after he reenlisted on 17 December 1975 he had two extended periods of AWOL, both of which were terminated due to apprehension by civilian authorities.  This clearly shows his lack of intention to return to his unit on his own.  Therefore, the evidence clearly shows show his second period of service was unsatisfactory.

6.  The applicant's post service conduct and his need for medical benefits discussed in his wife's statement were considered.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge.  The ABCMR does not upgrade discharges solely based on the passage of time or to make an individual eligible for benefits from another agency.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general.

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)                                         AR20100006963



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)