IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100010918 


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 general discharge be upgraded to honorable.

2.  The applicant states:

* He was discharged for excessive leave after his wife had a baby
* It was a decision he has regretted since
* He has been a model citizen since his discharge
* He has no police record
* He has been on Social Security disability for the past 6 years
* He has been married to his wife for 8 years and they have children

3.  The applicant provides no documentary evidence 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 13 August 1990 for a period of 4 years.  He successfully completed one station unit training and was awarded military occupational specialty 13B (cannon crewman).

3.  The applicant went absent without leave (AWOL) on 8 April 1992 and returned to military control on 13 June 1992.  On 29 June 1992, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

4.  On 29 June 1992, after consulting with counsel, the applicant 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.  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 had been advised and understood the possible effects of an under other than honorable discharge, that as a result of the issuance of such a discharge he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, 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 also 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.

5.  On 30 July 1992, the separation authority approved the applicant's request for discharge and directed his separation with an under other than honorable conditions discharge.

6.  Accordingly, on 14 August 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service was under honorable conditions (general).  He had served a total of 2 years and 2 days of creditable active service with 66 days of time lost.

7.  On 23 December 1996, the Army Discharge Review Board denied the applicant's request for an honorable discharge.


8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he went AWOL after his wife had a baby.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his alleged problems within established Army procedures prior to going AWOL.

2.  Good post service conduct alone is normally not a basis for upgrading a discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's record of service included 66 days of time lost.  As a result, his record of service 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.



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)                                         AR20100010918





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ABCMR Record of Proceedings (cont)                                         AR20100010918



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