BOARD DATE:	 24 August 2010 

		DOCKET NUMBER:  AR20100008804 


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 his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions.

2.  The applicant states he would like his discharge UOTHC upgraded so he can qualify for Department of Veterans Affairs benefits.  He continues that he does not believe his discharge is suitable for his offense because:

* he was absent without leave (AWOL) for less than 180 days
* he turned himself in
* all he wanted was to change his advanced individual training
* he was given no choice but to accept his discharge UOTHC
* he completed basic combat training with honor

3.  The applicant does not provide any additional documents.

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 records show he enlisted in the Army National Guard on 18 April 1978 and was ordered to initial entry training (IET) with a reporting date of 5 February 1979.

3.  The applicant failed to report as ordered and his duty status was reported as AWOL effective 5 February 1979.

4.  On 6 March 1979, the applicant was dropped from the rolls of the Army as a deserter.

5.  On 22 April 1979, the applicant was apprehended by civil authorities and returned to military control.

6.  On 3 May 1979, court-martial charges were preferred against the applicant for being AWOL from 29 January 1979 to 22 April 1979.

7.  On 3 May 1979, the applicant requested discharge in lieu of trial by court-martial for the good of the service.  In his request he stated, "I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person…as a result of the issuance of such a discharge, I will be deprived of many or all Army benefits, that I may be ineligible for many or all benefits administered by the Veterans Administration, and that I may be deprived of my rights and benefits as a veteran under both Federal and State laws."  The applicant added an addendum to his request for discharge in which he stated, "I am presently facing charges in Lawrence County, Missouri, in addition to my AWOL charges.  I ask that my discharge be approved so that I may go back and face my charges there."

8.  The applicant's commander recommended approval and recommended that the applicant be given a general discharge.  The commander stated that the applicant's character of service prior to the incident was good.

9.  The battalion commander recommended approval and recommended that the applicant be given a general discharge based on the unit commander's assessment of the applicant's character of service prior to the incident and the applicant's statement that his AWOL was due to extreme personal problems which he would not disclose.

10.  The brigade commander recommended approval and recommended that the applicant be given a general discharge.  The brigade commander added that the applicant was pending trial by civil court for burglary.

11.  On 21 May 1979, the acting commander of the U.S. Army Training Center Engineer and Fort Leonard Wood approved the applicant's request for discharge and directed he be given a discharge UOTHC.

12.  Accordingly, on 22 May 1979 the applicant was given a discharge UOTHC.  He had 86 days of lost time and 21 days of creditable active service during that period.

13.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

14.  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 did not report for his IET, was carried as AWOL, was dropped from the rolls of the Army as a deserter, was returned to military control after he was apprehended by civil authorities, and was pending civil charges for burglary.

2.  When court-martial charges were preferred against him, he requested discharge.  If he had personal problems as he stated to his battalion commander, that would have been the time to present them as matters of mitigation.

3.  It is noted that both the applicant's commander and battalion commander recommended that the applicant be given a general discharge.  However, this recommendation was based on the applicant's character of service prior to the offense.  In this case, there was no active service (during that period) prior to the AWOL.  The applicant failed to report for duty.  As such, these recommendations were not accepted by the approving authority.  This appears to be a reasonable decision.

4.  Since the applicant was dropped from the rolls of the Army as a deserter, his contention that his discharge should be upgraded because he was AWOL for less than 180 days is not accepted.  His contention that he turned himself in is not supported by the evidence of record.  There is no evidence that the applicant attempted to change his advanced individual training.  In his statement requesting discharge, he said, "I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person."

5.  Based on the seriousness of the applicant's offense and his failure to provide any reason for his absence, his discharge UOTHC is appropriate and there is no reason to change it.

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)                                         AR20100008804



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)