BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100011414 


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 undesirable discharge to an honorable or general discharge.

2.  The applicant states he is requesting the upgrade to clear his name.  He feels he has changed his life around and if he had it to do again, he would do things differently.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 January 1976; a self-authored letter; and character reference letters from friends and acquaintances.

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 on 11 May 1979 in the rank/grade of private/E-1 for a period of 3 years.

3.  On 6 August 1979, he was pending separation under the provisions of paragraph 5-33 (Trainee Discharge Program), Army Regulation 635-200 (Personnel Separations).  He was being trained in military occupational specialty 11B (Infantryman).

4.  On 7 August 1979, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) for the periods 15-16 July 1979 and 17-31 July 1979.  His punishment included forfeiture of pay, 21 days of extra duty, and 21 days of restriction to the company area, to run concurrently.

5.  He received several counseling statements between 24 May 1979 and 7 August 1979.  On 10 August 1979, while pending separation for numerous disciplinary problems, the applicant went AWOL and remained so absent until 14 August 1983.

6.  The facts and circumstances of the applicant's discharge proceedings are not in the available records; however, on 16 August 1983 he made a statement in which he admitted to being AWOL during the period 10 August 1979 to 14 August 1983.  He acknowledged that his military counsel had explained all the legal and social ramifications of receiving an other than honorable conditions discharge and what it would mean to him in the future.

7.  On 22 February 1984, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His records show he was credited with 6 months and 16 days of active service and 1,480 days of time lost.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

9.  The applicant provides several character reference statements from friends and business associates who generally state that he has turned his life around and has been an honorable, extremely dedicated individual, with great work ethics and is a trustworthy employee as well as a sincere friend.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who commits 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority could direct the issuance of a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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.

12.  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 evidence of record shows the applicant had several periods of AWOL which totaled 1,480 days of lost time; therefore, his conduct and performance were not acceptable for military personnel and he has not provided sufficient evidence to mitigate his behavior to warrant upgrading his discharge.

2.  In the absence of evidence to the contrary it is presumed his separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

3.  The character reference letters submitted by the applicant were considered; however, there is no substantial evidence to support a change in the actions by the command concerning his discharge.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

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)                                         AR20100011414



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ABCMR Record of Proceedings (cont)                                         AR20100011414



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