IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007235 


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, in effect, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states he was having problems adjusting to the military and that he did not fit in with his unit.  He states he has a learning disability that made military life very hard.  He states he should have been sent to one-on-one training and personal counseling to help him adjust to the military lifestyle.

3.  The applicant did not provide any documentary evidence to support his application.

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 Regular Army on 3 February 1976 for a 3-year period.  He completed his initial entry training and he was awarded military occupational specialty 11C (Heavy Weapons Infantryman).

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for being:

* absent without leave (AWOL) from 7 July 1976 to 9 July 1976
* AWOL from 2 April 1976 to 12 April 1976

4.  On 2 September 1976, the applicant was convicted by a special court-martial of three specifications of being AWOL.

5.  On 15 July 1977, court-martial charges were preferred against the applicant for being AWOL for two periods from 5 January 1977 to 10 February 1977 and from 11 February 1977 to 14 July 1977.

6.  In an interview with his immediate commander on 15 July 1977, the applicant stated he was having family problems and that he could not adjust to Army life.  He acknowledged in writing that he wanted to get out of the Army.

7.  The applicant was medically evaluated on 15 July 1977 and found medically qualified for separation consideration under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  During a mental status evaluation, he was found to be mentally responsible, able to distinguish right from wrong with the ability to adhere to the right, and that he met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

8.  On 15 July 1977, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would 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 expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

9.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial on 25 August 1977 and directed issuance of an under other than honorable conditions discharge.

10.  The applicant was discharged accordingly on 6 September 1977.  The DD Form 214 issued at the time confirms he completed 9 months and 28 days of total active service with 276 days of lost time due to AWOL or confinement.  His service was characterized as under other than honorable conditions.

11.  On 17 April 1980, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.  That board determined the applicant's discharge was proper and equitable with his discharge properly reflecting his service characterization as under other than honorable conditions.

12.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge (dishonorable discharge or bad conduct discharge) is authorized for an AWOL offense of 30 days or more.  The maximum punishment for AWOL includes confinement for 12 to 18 months and a forfeiture of all pay and allowances.

	b.  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.

	c.  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.

	d.  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.  While the applicant states that at the time of his service in the Regular Army he had a learning disability which hindered his ability to adjust to the military lifestyle and that he was experiencing family problems, he has not produced documentary evidence to support his contentions.

2.  With the applicant's extensive AWOL history, it can be presumed that he was not adjusting to the military lifestyle as he was rarely present for duty.  In fact, based on the evidence of record his chain of command did give him three opportunities to modify his behavior through the imposition of nonjudicial punishments and a special court-martial.  However, the applicant continued to leave without authorization.  Therefore, he was charged with the commission of offenses punishable under the UCMJ for extended AWOL periods occurring after he failed to respond to the earlier imposed corrective discipline.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

5.  Therefore, there is no basis for warranting an upgrade of the applicant's under other than honorable conditions 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)                                         AR20100007235



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)