IN THE CASE OF:
BOARD DATE: 16 September 2010
DOCKET NUMBER: AR20100009571
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 that his discharge under other than honorable conditions be upgraded to a general discharge.
2. The applicant states, in effect, the type of discharge he was issued is too harsh considering the nature of his offense.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 6 November 1961, and a copy of his
DD Form 215 (Correction to DD Form 214), dated 1 April 1982.
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 applicants 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 applicants 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 the Regular Army for 3 years on 20 January 1981. He completed training as an indirect fire infantryman.
3. The applicant went absent without leave (AWOL) on 17 July 1981 and he remained absent in a desertion status until he was apprehended by civil authorities and returned to military control on 2 October 1981.
4. On 8 October 1981, the applicant was notified that charges were pending against him for being AWOL from 17 July until 2 October 1981. He acknowledged receipt of the notification and after consulting with counsel, he submitted a request for discharge on 9 October 1981, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.
5. In his request for discharge he acknowledged he understood he may be discharged under other than honorable conditions and the possible effects of receiving such a discharge.
6. The appropriate authority approved the request for discharge on 27 October 1981 and he directed the issuance of a discharge under other than honorable conditions.
7. Accordingly, on 6 November 1981, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had completed 11 months and 2 days of net active service this period and he had approximately 77 days of lost time due to being AWOL.
8. On 17 September 1987, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge under other than honorable conditions.
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 contentions have been noted and they are not substantiated by the evidence of record.
2. His record shows that he went AWOL on 17 July 1981 and he remained absent in a desertion status until he was apprehended by civil authorities and returned to military control on 2 October 1981. He submitted a request for discharge for the good of the service in lieu of trial by court-martial. As previously stated a discharge under other than honorable conditions is normally considered appropriate.
3. Considering the nature of his offense, it does not appear that his discharge under other than honorable conditions was too harsh and it appropriately reflects his overall record of service.
4. In view of the foregoing, there is no basis for granting the applicant's 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) AR20100009571
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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