IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100010815 


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 his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, he would like to upgrade his status in the world and show his character has changed.

3.  The applicant provides four character reference letters 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 Regular Army on 11 June 1974 for a period of 4 years.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 11E (armor crewman).  

3.  Between 13 August 1974 and 18 August 1977, nonjudicial punishment (NJP) was imposed against the applicant on five separate occasions for one specification of failure to repair and four specifications of being absent without leave (AWOL).

4.  On 16 December 1977, the applicant was convicted by a summary court-martial of being AWOL from 4 October 1977 to 3 November 1977.  He was sentenced to be reduced to E-1, to forfeit $295.00 pay per month for 1 month, and to be restricted to the company area, mess hall, post exchange, and his place of worship for 45 days.  On 19 December 1977, the convening authority approved the sentence. 

5.  On 12 January 1978, a bar to reenlistment was imposed against the applicant. 

6.  On 21 February 1978, the applicant went AWOL.  He was apprehended by civilian authorities and returned to military control on 13 April 1978.  On 18 April 1978, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

7.  On 18 April 1978, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf 

8.  On 1 May 1978, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 8 May 1978 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 served a total of 3 years, 7 months, and 28 days of creditable active service with 93 days of lost time.

10.  In support of his claim, the applicant provided four character reference letters from friends.  They attest the applicant is a very good friend who is caring, loving, helpful, considerate, hard working, and honorable.  

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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.

13.  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.

14.  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 character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  
3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The applicant's record of service included 5 NJPs, one summary court-martial conviction, a bar to reenlistment, and 93 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge 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)                                         AR20100010815





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ABCMR Record of Proceedings (cont)                                         AR20100010815



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