IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100010453 


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, in effect, that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was young and immature when he entered the U.S. Army and he did not realize at that time how his behavior and discharge would affect the rest of his life.  He is homeless and has not been able to get a decent job due to the type of military discharge he received.  He states he wants to turn his life around and if his discharge was upgraded it would help him to get his feet back on the ground and be an asset to society instead of a burden.

3.  The applicant provides a character reference.

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 Personnel Records Jacket (MPRJ) shows that on 
11 June 1979, at age 18, he enlisted in the Regular Army for a period of 3 years. He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 94B (Food Service Specialist).  On 9 October 1979, he was assigned to the 502nd Adjutant General Company, 2nd Armored Division at Fort Hood, TX. 

3.  The applicant's MPRJ shows he was absent without leave (AWOL) from on or about 2 May to 5 May 1980.

4.  On 15 August 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 13 May to 30 July 1980.

5.  On 29 August 1980, the applicant was assigned to Headquarters and Headquarters Company, 5th Battalion, 32nd Armor at Fort Stewart, GA.

6.  The applicant's MPRJ shows he was AWOL from on or about:

* 3 October to 26 November 1980  
* 2 December 1980 to 12 January 1981

7.  There is no disposition in his MPRJ for the above periods of AWOL.

8.  On 27 March 1981, court-martial charges were preferred against the applicant for being AWOL from on or about:

* 2 May to on or about 5 May 1980 
* 14 January to on or about 18 March 1981 

9.  On 27 March 1981, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the elements of the offense he was being charged with and he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be furnished an Under Other Than Honorable Conditions Discharge Certificate



10.  In addition, the applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Veterans Administration benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws
* there was no automatic upgrading or review by any government agency of a less than honorable discharge

11.  Additionally, the applicant stated in his request that he could not cope with the military life and he thought he would do better as a civilian worker.

12.  On 5 April 1981, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 5 June 1981, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200, for the good of the service.  He had completed 1 year, 3 months, and 7 day of active service that was characterized as under other than honorable conditions.  He had 268 days of time lost.

14.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 18 April 1995, the ADRB denied the applicant's request for an upgrade of his discharge.  

15.  A character reference that the applicant submitted with his application is from the supervisor of the Lincoln Neighborhood Service Center in Tallahassee, FL.  The supervisor stated the applicant was diligent in helping to set up, maintain, monitor, and dismantle the cold night Shelter when needed.  She also stated he had a quite (sic) demeanor and positive attitude while performing any task assigned.

16.  References:

	a.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided that a member who committed an offense or offenses for which the authorized punishment included 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.  A discharge under other than honorable conditions was normally considered appropriate.  

	b.  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 is otherwise so meritorious that any other characterization would be clearly inappropriate.  

	c.  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 requests that his discharge under other than honorable conditions be upgraded to an honorable discharge.  He contends he was young at the time and didn't realize how the discharge would affect the rest of his life.

2.  The applicant’s age at time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the applicant's age is not sufficient to change a properly-issued discharge.

3.  In the applicant's signed request for discharge he stated he understood he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He also indicated he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

4.  Therefore, his contention that he did not know the effects of the discharge is not supported by the evidence.

5.  The character reference submitted by the applicant was reviewed.  However, good post-service conduct alone is not a basis for upgrading a discharge.  
6.  The applicant’s voluntary request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  There is no evidence of procedural or other errors that would have jeopardized his rights.

8.  The applicant’s record of multiple periods of AWOL clearly shows his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He had 268 days of lost time, thereby showing his service to be unsatisfactory.  Therefore, the applicant is not entitled to either an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20100010453



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ABCMR Record of Proceedings (cont)                                         AR20100010453



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