IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100009252 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states that:

* he was young and foolish at the time of his discharge
* he wishes that he had more common sense back then and truly regrets his decisions at that time
* he is older, wiser, and more responsible now and he realizes his stupidity

3.  The applicant provides no documents 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 military record shows he was initially inducted into the Army of the United States and entered active duty on 2 May 1966.  He continuously served until he was honorably discharged on 19 February 1968, for the purpose of enlistment in the Regular Army.

3.  On 20 February 1968, the applicant enlisted in the Regular Army.  He served in military occupational specialty 26B (Weapons Support Radar Repairer).

4.  The applicant’s military record shows he twice accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 5 December 1966 for being absent without authority and on
7 August 1970 for being absent with leave (AWOL) and disobeying a lawful order.

5.  On 29 November 1978, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86, UCMJ, for being AWOL from on or about 29 August 1970 until on or about
25 November 1978.

6.  On 4 December 1978 the applicant acknowledged that he was AWOL.  He also consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal 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.

7.  In his request for discharge, the applicant acknowledged he understood that 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 and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.

8.  On 4 December 1978, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, and directed he receive a UOTHC discharge.  On 8 January 1979, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant upon his discharge confirms he was separated under the provisions of Army Regulation 635-200, chapter 10.  It also shows he completed a total of 4 years, 5 months, and 9 days of creditable active service and he accrued 3,010 days of time lost due to being AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.

12.  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 his UOTHC discharge should be upgraded.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ for being AWOL 3,010 days (which equates to 8 years, 2 months, and 28 days).  It further shows that after consulting with legal counsel and being advised of his rights and the effects of a UOTHC discharge, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 

3.  The lengthy period of AWOL rendered the applicant's service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100009252



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ABCMR Record of Proceedings (cont)                                         AR20100009252



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