IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100010456 


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 an honorable discharge.

2.  The applicant states:

* the character of his discharge is inequitable and it is not consistent with the policies and traditions of the United States Army
* the only disciplinary problem he incurred arose as a direct result of his care and concern for a family member
* his commanding officer advised him that his wife had been hospitalized due to tumors discovered in her ovaries
* he was sent home to support his wife and he over-stayed his visit and was absent without leave (AWOL)
* he returned 1 month later after he obtained commercial transportation through the Navy at Terminal Island
* he was reduced in rank, lost pay, received extra duty, and was restricted
* he was discharged for the good of the service in lieu of trial by court-martial
* he was 19 years old and he had been a model Soldier when the incident arose
* his conduct was exemplary and he wanted to remain in the Army
* if the Army had shown compassion, he would not have been terminated from the Army
* the punishment imposed is inconsistent with humane policies of the Army and was too severe for the mitigating reasons
* when his military service was terminated, he became addicted to alcohol and mind-altering drugs
* he attended a residential rehabilitation program and has been clean and sober for over 8 years
* he now sponsors recovering addicts and is a lecturer on recovery and sobriety
* he was young and naïve and he did not fully understand the consequences or remedies that were available to him

3.  The applicant provides a letter of support from a friend, dated 17 September 2010, attesting to his post-service conduct and participation as a sponsor in rehabilitation.

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.  On 25 November 1981, the applicant enlisted in the Regular Army for 3 years at 18 years of age.  He completed training as a medical specialist.

3.  Nonjudicial punishment was imposed against him on 14 June 1982 for being AWOL from 10 May 1982 until 8 June 1982.  His punishment included forfeiture of pay, restriction, and extra duty.

4.  He was transferred to Germany on 8 September 1982.

5.  The applicant's charge sheet is not on file.  However, his records show he went AWOL again on 22 November 1982 and he remained absent in desertion until 15 January 1983.  He was notified that charges were pending against him for being AWOL and on 18 February 1983, after consulting with counsel, he submitted a request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge he acknowledged that he understood he may be discharged under other than honorable conditions and the possible effects of receiving a discharge under other than honorable conditions.

7.  The appropriate authority approved his request for discharge on 28 February 1983 and directed the issuance of a discharge under other than honorable conditions.

8.  Accordingly, on 9 March 1983, 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 completed 1 year, 2 months, and 17 days of net active service with approximately 2 months and 23 days of lost time due to AWOL.

9.  The available records do not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

11.  Paragraph 3-7a of Army Regulation 635-200 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.

12.  Paragraph 3-7b of Army Regulation 635-200 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 supported by the evidence of record.

2.  The available records show he had two periods of AWOL when he was in the Army.  There is no evidence in the available record and he has not submitted any evidence that shows his discharge was due to a lack of compassion by the Army.

3.  The applicant was discharged from the Army because he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  If he believed that he had to be AWOL for legitimate reasons, he could have elected to stand trial by a court-martial.  He elected not to do so.

4.  Additionally, when he submitted his request for discharge he acknowledged that he understood the effects of a discharge under other than honorable conditions.

5.  Considering the nature of his offenses, it does not appear that the character of his service is too harsh.  He was discharged in accordance with the applicable regulation with no indication of procedural errors which would tend to jeopardize his right.  The type of discharge he received appropriately reflects his overall record of service.

6.  The applicant's age at the time the offenses occurred has been considered.  His post-service conduct has also been considered.  However, neither of the two is sufficiently mitigating to warrant the requested relief.

7.  The character of his service in not inequitable and in view of the foregoing conclusions, 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)                                         AR20100010456



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ABCMR Record of Proceedings (cont)                                         AR20100010456



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