IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100008146 


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 his discharge was inequitable because it was based on him going AWOL after news of his father’s death.  He states he was a good Soldier up until his father's death.  After he went on emergency leave and returned to his post, he was experiencing mental anguish and not thinking straight.  In retrospect, he should have requested mental health counseling, but it was never offered.

3.  The applicant provides no evidence in support of 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’s record shows he enlisted in the Regular Army on
23 September 1980 for a period of 3 years.  He completed the required training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  The highest rank/grade he attained was specialist four (SP4)/E-4.

3.  The applicant received received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 6 April 1983, for being absent without leave (AWOL) from on or about
7 March 1983 to on or about 22 March 1983
* 9 May 1983, for being AWOL from on or about 19 April 1983 to on or about 20 April 1983
* 25 July 1983, for leaving his appointed place of duty without proper authority on 8 July 1983

4.  On 26 September 1983, court-martial charges were preferred against the applicant for being AWOL from on or about 3 August 1983 until on or about
23 September 1983.

5.  On 2 October 1983, the applicant again went AWOL.  He was returned to military control on 20 October 1983.  On the same day an additional court-martial charge was preferred against the applicant based on this period of AWOL.

6.  The applicant subsequently consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service.  In his request for discharge, he acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  The applicant’s immediate and intermediate commanders recommended approval of his request for discharge.  On 3 November 1983, the separation authority (a major general) approved the applicant's request for discharge, directed his discharge in the rank/grade of private (PV1)/E-1, and issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 21 November 1983, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an under other than honorable conditions discharge.  He completed a total of 2 years, 11 months, and 19 days of total active service with 69 days of time lost due to being AWOL.

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 applicant's contention that his discharge should be upgraded to a general discharge because of mental health issues and his AWOL because of his father’s death were carefully considered; however, there is insufficient evidence and he did not provide any evidence that shows the discharge he was issued was inequitable or unjust.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of a trial by court-martial.

3.  The evidence of record confirms the applicant's separation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100008146



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ABCMR Record of Proceedings (cont)                                         AR20100008146



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