IN THE CASE OF:	  .

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100009039 


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

2.  He states he loved the military and his job in the U.S. Army.  He came home on leave and his daughter was just born.  While at home, he became sick, had surgery, and couldn’t go back to Panama.  He even talked to his commander in Panama so he would know.  After healing, he turned himself in.  His appeals were removed and he was discharged.  He wants an honorable discharge.  Since he has been out of the Army he has been working and trying to survive and trying not to get in any trouble.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Regular Army (RA) in pay grade E-1 on 1 June 1977, for 3 years.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He was promoted to pay grade E-4 on 1 November 1978.  

3.  He was honorably discharged on 29 November 1979 for the purpose of immediate reenlistment and issued a DD Form 214.  He reenlisted in the RA on 30 November 1979 for 4 years.

4.  He was reported absent without leave (AWOL) on 8 February 1981 and returned to duty on 11 February 1981.  On 18 February 1981, he accepted punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 8 February to 11 February 1981.

5.  He served in Panama from 12 May 1981 through 9 November 1982.

6.  He was again reported AWOL on 19 January 1982 and dropped from the rolls on 18 February 1982.  

7.  On 18 February 1982 a DD Form 458 (Charge Sheet) was prepared by the Commander, Company C, 3rd Battalion, 5th Infantry, Fort Kobbe, Panama.  He was charged with one specification of AWOL from 19 January 1982 to an unknown date.  

8.  On 4 April 1982, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge and he did not desire further military service.  He also acknowledged that he could be discharged under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.

9.  He was discharged on 14 May 1982 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  He was credited with completing 2 years, 2 months, and 26 days of net active service and 79 days of lost time.
10.  On 18 April 1995, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, specified a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant served on active duty from 1 June 1977 to 29 November 1979.  He was honorably discharged and reenlisted on 30 November 1979 for 4 years.  He was reported AWOL from 8 to 11 February 1981 and accepted punishment under Article 15 for this period of AWOL.  He was again reported AWOL on 19 January 1982 and dropped from the rolls on 18 February 1982.  On the same day, he was charged with AWOL from 19 January 1982 to an unknown date.  In April 1982, upon his return to military control he requested to be discharged in lieu of court-martial.

2.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly based on the charges.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  In order to justify correction of a military record, an applicant must how to the satisfaction of the Board or it must otherwise appear the record is in error or unjust.  He has failed to submit evidence that would satisfy this requirement.

5.  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)                                         AR20100009039





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)