IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100010550 


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:

* He regrets the decision he made since his discharge
* He was in a "bad time" and made a worse decision
* The circumstances of his discharge do not warrant a general discharge
* He was solely responsible for his children's care at the time

3.  The applicant provides no additional documentation 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 enlisted in the Army for 3 years on 23 January 1980 and he successfully completed training as a tactical wire operations specialist.  He was promoted to the pay grade of E-2 on 1 July 1980.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 13 February 1981 for, through neglect, damaging by failing to perform the proper maintenance, the drive train in a vehicle that was the military property of the U.S., the amount of the damage being the sum of approximately $125.00.  His punishment included:

* Reduction in pay grade
* Forfeiture of pay
* Correctional custody

4.  The applicant went absent without leave (AWOL) on 27 December 1981 and he remained absent in desertion until he surrendered to military authorities on 17 February 1982.

5.  On 23 February 1982, he was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification and after consulting with counsel on 24 February 1982 he submitted a request for discharge 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.

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 applicant was personally interviewed regarding his AWOL and he stated he went AWOL because his family was going through a financial hardship.  He stated that his request for a hardship discharge had been disapproved and when he received orders to go to Korea, he decided to go AWOL rather than to be separated from his family.

8.  The appropriate authority approved the request for discharge on 2 June 1982 and he directed the issuance of a discharge under other than honorable conditions.

9.  Accordingly, on 24 June 1982, 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 2 years, 3 months, and 11 days of net active service this period and he had approximately 1 month and 22 days of lost time due to AWOL.

10.  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.

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.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  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 considered.

2.  However, his records show that he had NJP imposed against him for negligently damaging government property.  He then went AWOL on                 27 December 1981 and he remained absent in desertion until he surrendered to military authorities on 17 February 1982.

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 go AWOL for legitimate reasons he could have elected to stand trial by a court-martial, but 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.  The type of discharge he received appropriately reflects his record of service.

6.  The fact that he now regrets the decision he made is not a basis for upgrading his 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)                                         AR20100010550



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ABCMR Record of Proceedings (cont)                                         AR20100010550



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