IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100010882 


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 an upgrade of his under other than honorable conditions discharge to at least a general discharge under honorable conditions.

2.  The applicant states, in effect, he thought the local police would notify the Army of his whereabouts but they did not do so.  Additionally, he was not allowed to call his unit. 

3.  The applicant did not provide any additional documents.

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 records show he enlisted in the Regular Army on 30 March 1979.  He completed basic combat training and was subsequently reassigned to Fort Lee, VA for completion of advanced individual training.

3.  On 4 September 1979, he departed his unit in an absent without leave (AWOL) status.  On 3 October 1979, he was dropped from Army rolls and he was returned to military control on 3 January 1980.

4.  On 19 January 1980, he again departed his unit in an AWOL status and on 20 January 1980, he was dropped from Army rolls.  He returned to military control on 9 February 1981.

5.  On 2 March 1981, he departed his unit in an AWOL status and on 3 March 1981, he was dropped from Army rolls. He returned to military control on 17 September 1981.  

6.  On 18 September 1981, during an interview to determine why he went AWOL, the applicant indicated that he went AWOL because the Army was not the way he thought it would be and that he "just did not want to stay in." 

7.  On 21 September 1981, court-martial charges were preferred against the applicant for two specifications of being AWOL from 2 March 1981 to 
17 September 1981 and 4 September 1980 to 9 February 1981. 

8.  On 23 September 1981, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

9.  In his request for discharge, he indicated that he was making this request of his own free will and that he had not been subjected to coercion by anyone.  He also indicated he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service" and elected not to submit a statement in his own behalf.

10.  On 25 September 1981, his immediate and intermediate commanders recommended approval with the issuance of an under other than honorable conditions discharge. 

11.  On 30 September 1981, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 27 October 1981, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 7 months and 23 days of creditable active military service and he had 704 days of lost time.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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.

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 applicant contends his under other than honorable conditions discharge should be upgraded to at least a general discharge under honorable conditions.

2.  His records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on his extensive record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable condition.

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)                                         AR20100010882



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ABCMR Record of Proceedings (cont)                                         AR20100010882



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