IN THE CASE OF:	  

		BOARD DATE:	 21 October 2010 

		DOCKET NUMBER:  AR20100011860 


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 upgrade of his undesirable discharge.

2.  The applicant states he was discharged for excessive absence without leave (AWOL).  He states the reason for his absence was that his father required his assistance during an illness and he would like to have his character of service changed by clemency.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 military records show he enlisted in the Regular Army on 5 June 1975.  He did not complete initial entry training and was not awarded a military occupational specialty.  The highest rank/grade he held was private/E-2.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 28 April 1976 for twice without authority failing to go at the time prescribed to his appointed place of duty.

4.  His records show he was charged with absenting himself from his unit without authority during the periods 28 May to 15 June 1976 and 16 June to 13 September 1976.

5.  On 16 September 1976, he voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He acknowledged that he understood he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice, which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he was making the request of his own free will and was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications attached to his request.  He further acknowledged that by submitting his request for discharge, he was admitting to being guilty of a charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.  

6.  He consulted with counsel prior to completing his request for discharge and was advised of his rights.  He acknowledged he understood if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He chose not to submit a statement in his own behalf.

7.  On 22 September 1976, the applicant's unit commander recommended approval of his request for discharge.

8.  On 24 September 1976, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed he be given an Undesirable Discharge Certificate.
9.  On 5 October 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued at that time shows he completed a total of 1 year and 13 days of active military service with 105 days of lost time.

10. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  At the time of the applicant's separation, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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's records show he accepted NJP for failing to go at the time prescribed to his appointed place of duty and he was charged with absenting himself from his unit without authority on two separate occasions.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.

2.  The applicant asks for clemency based on his contention he was AWOL because his father required his assistance during an illness.  The Army has policies and procedures to deal with hardships, including compassionate reassignments and hardship discharges.  Notwithstanding his attached letter chronicling his father's medical circumstances during the time he was AWOL, the applicant has not submitted any evidence to show he properly applied for a compassionate reassignment or a hardship discharge.  However, even if he did, it would not form the basis to upgrade his discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100011860



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ABCMR Record of Proceedings (cont)                                         AR20100011860



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