IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100009727 


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 either an honorable or a general discharge.

2.  The applicant states he did not know he could request an upgrade.

3.  The applicant did not provide any additional documentary 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 records show he enlisted in the Regular Army on 31 October 1975.  He completed basic combat and advanced individual training and he was 


awarded military occupational specialty (MOS) 13B (cannon crewman).  He was honorably discharged on 12 July 1978 for the purpose of immediate reenlistment.  He reenlisted on 13 July 1978.

3.  Records show the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated:

   a.  on 15 April 1979, for being absent without leave (AWOL) during the period  26 March 1979 until on or about 28 March 1979;

   b.  on 26 September 1979, for being AWOL during the period 4 September 1979 until on or about 13 September 1979; and

   c.  on 30 November 1979, for being AWOL during the period 
13 November 1979 until on or about 14 November 1979.

4.  The applicant was again reported AWOL on 3 March 1980.  He was dropped from the rolls (DFR) of the Army as a deserter on 10 March 1980.  He subsequently returned to military control on 18 August 1993 pending disposition of his extended absence.

5.  On 23 August 1993, charges were preferred against the applicant for being AWOL during the period 3 March 1980 until on or about 18 August 1993.

6.  On 23 August 1993, the applicant 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.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he understood that by requesting a 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 further 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State Law.

8.  On 23 August 1993, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 8 November 1993, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 1 year, 9 months, and
14 days of creditable active service with over 13 years lost time due to AWOL.

9.  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 limitation.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an under other than honorable conditions discharge was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or otherwise so meritorious than any characterization would be clearly in appropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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's contention that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support this request.



2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial.  

3.  The applicant's record of service shows that he received punishment under the provisions of Article 15 of the UCMJ on three occasions and he was AWOL for over 13 years.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either an honorable or a general discharge. 

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)                                         AR2