IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100011309 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states that although he extended his legitimate leave twice without permission, he returned each time of his own volition.  He was given an Article 15 and took a reduction in rank.  However, he never assaulted anyone and he had never been drunk and disorderly or disobeyed a direct order.  He was told he would either be court-martialed or he could take the under other than honorable conditions discharge and request an upgrade within a few years.  He also believes that an inappropriately severe and arbitrary punishment has deprived him of veterans' benefits and other job opportunities.  He knows that in similar circumstances, when given an Article 15 an individual received an honorable discharge.  He states he requested this before and was unable to pursue the process due to his own self-destructive behavior.  Nevertheless, he has since matured, straightened out his life, and continued his association with the military.  He believes his life now reflects the values of the Army.

3.  The applicant provides:

* letters from his employees and friends
* several achievement awards
* letter, dated 15 July 2005, from the Department of the Air Force for Data Collector for Wage Change Survey
* copy of a Nonappropriated Fund (NAF) Form 1702 (Civilian Position Description)

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 for a period of 3 years on 19 April 1974 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private/E-2.  He was assigned to the 1st Battalion, 41st Infantry, Fort Hood, TX.

3.  On 2 December 1975, he departed his unit in an absent without leave (AWOL) status.  He returned to his unit on 8 December 1975.

4.  On 15 April 1976, he again departed his unit in an AWOL status and on 14 May 1976 he was dropped from the Army rolls as a deserter.  He returned to his unit on 7 July 1976.

5.  The complete facts and circumstances concerning the applicant’s discharge process are not available for review with this case.  However, his records contain a properly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 1 September 1976 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form also shows he completed 2 years, 1 month, and 13 days of creditable active service during this period with 89 days of lost time.

6.  On 3 November 1982, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

7.  He submitted several statements and/or character reference letters from various individuals as follows:

	a.  NAF Form 1702, dated 4 August 1995, describing the duties of a food service worker;

	b.  a letter, dated 31 July 1997, from the Department of the Air Force wishing him a happy birthday;

	c.  an undated letter from an individual who describes the applicant as an individual of good character;

	d.  two self-authored statements, dated 16 May 2004 and 15 September 2004, wherein he describes the reasons for his undesirable discharge as his immaturity, bad judgment, and alcohol;

	e.  a letter, dated 9 June 2004, from an official at the Department of the Air Force concerning a meeting;

	f.  a letter, dated 31 July 2004, from a colleague who describes the applicant as a dependable, reliable, hardworking, and conscientious person;

	g.  a letter, dated 29 September 2004, from a training specialist who describes the applicant as an individual with high ethics and skill;

	h.  a letter, dated 6 October 2004, from a retired master sergeant who describes the applicant as a very good buddy and friend;

	i.  a letter, dated 25 July 2005, from an NAF director regarding a survey;

	j.  a letter, dated 16 July 2009, from a human resources manager verifying the applicant's employment with a food company;

	k.  a letter, dated 9 September 2009, from a personal friend who describes the applicant as a well-grounded individual with solid decisions and known maturity;

	l.  a letter, dated 18 September 2009, from a retired Government employee who describes the applicant as a person who struggled with alcohol but found a way to overcome this problem;

	m.  a letter, dated 22 September 2009, from his sister who describes the applicant as an angry man who struggled with alcohol but has since recovered;

	n.  a letter, dated 20 October 2009, from a day care specialist who comments on the applicant's ability to get any job done;

	o.  an undated letter from a friend who has known him for years and describes him as a respected and loving friend; and

	p.  several certificates of achievement, completion, or training.

8.  Army Regulation 635-200 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.  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, an under other than honorable conditions discharge 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.

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

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 1 September 1976 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.

4.  The applicant's post-service achievements and several letters of recommendation or character reference letters were considered; however, they are not sufficiently mitigating in granting him the requested relief.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he 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 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)                                         AR20100011309



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ABCMR Record of Proceedings (cont)                                         AR20100011309



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