IN THE CASE OF:	  

		BOARD DATE:	    9 September 2010

		DOCKET NUMBER:  AR20100010860 


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 an honorable discharge.

2.  The applicant does not provide any comments in support of his request.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 U.S. Army Reserve (USAR) on 12 June 1981 for a period of 6 years under the Delayed Entry Program (DEP).  On 15 June 1981, 


he was discharged from USAR DEP and he enlisted in the Regular Army on
16 June 1981 for a period of 4 years.  A copy of his DA Form 2-1 (Personnel Qualification Record - Part II) shows in item 35 (Record of Assignments) that he completed basic combat training on or about 17 August 1981.  He proceeded to advanced individual training (AIT) on 18 August 1981 and his status changed to absent without leave (AWOL) on 30 August 1981.  He remained AWOL until on or about 26 September 1981.  This form also shows he reentered AIT the next day.

3.  A copy of a DD Form 458 (Charge Sheet) shows he went into an AWOL status again on 28 September 1981 and was later dropped from the rolls (DFR) as a deserter on 28 October 1981.  He later returned to military control on 
8 December 1981.

4.  The applicant underwent a mental status evaluation on 11 December 1981.  A copy of the DA Form 3822-R (Report of Mental Status Evaluation) found the applicant to have normal behavior, to be fully alert and oriented, his mood or affect was unremarkable, his thinking was clear, and his thought content was normal.  He was also found to have the mental capacity to understand and participate in the proceedings and he met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness).

5.  On 11 December 1981, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  On 28 December 1981, the separation authority approved the applicant's request for discharge and directed issuance of an under other than honorable conditions discharge.

7.  The applicant's DD Form 214 shows he was discharged on 12 February 1981 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  He had completed 4 months and
20 days of net active service and he had 99 days of time lost.

8.  The applicant's records show that he applied to the Army Discharge Review Board (ADRB) on 23 April 1982 for consideration of an upgrade of his discharge within that board's 15-year statute of limitations.  On 5 October 1982, the ADRB determined the applicant had been properly discharged and subsequently denied his request.


9.  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.

10.  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.

11.  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 under other than honorable conditions discharge should be upgraded to an honorable discharge was not supported by the evidence provided.

2.  His military record includes two periods of AWOL, of which one period ultimately culminated in a DFR status.  Therefore, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There is no evidence of an error or injustice on the part of the Army.  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)                                         AR20100010860



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ABCMR Record of Proceedings (cont)                                         AR20100010860



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