IN THE CASE OF:	 

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100011204 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant makes no additional statement.

3.  The applicant provides no additional evidence. 

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 record shows he enlisted in the Regular Army on 14 July 1977.  He completed basic combat training.  The highest rank he attained while serving on active duty was private first class/E-2.

3.  Records show the applicant was identified as being absent without leave (AWOL) on 12 October 1977.  He was dropped from the rolls 11 November 1977.  He was then apprehended by civil authorities and returned to his unit 12 January 1978 (92 days).

4.  Charges were preferred against the applicant on 24 January 1978 for being AWOL during the period 12 October 1977 through 12 January 1978.  

5.  On 25 January 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting a 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 or dishonorable discharge.  He further acknowledged he understood that if his 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.

7.  On 13 March 1978, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 5 April 1978, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 5 months and 22 days of creditable active service.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  An under other than honorable conditions discharge is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, states 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.  

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  The applicant's record shows he was charged with unauthorized absence, 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.  Therefore, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. 

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows he was AWOL 92 days.  Based on his record of indiscipline, the applicant's service clearly does not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or 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)                                         AR20100012682



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ABCMR Record of Proceedings (cont)                                         AR20100011204



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