IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012076 


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 under other than honorable conditions discharge to a general or honorable discharge.

2.  The applicant states he was young at the time of the incident that led to his discharge from the service.  He states his discharge characterization has caused him hardship during the past 27 years and he would like to qualify for Department of Veterans Affairs (VA) programs.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 18 November 1983;

	b.  undated and unofficial transcripts for an associate's degree in computers; and

	c.  three character reference letters from a teacher, business confidant, and employer.

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 was born on 30 October 1962.  He was 17 years and 11 months of age when he enlisted in Delayed Entry Program of the U.S. Army Reserve on 17 September 1980 for a 4-year period.  He enlisted in the Regular Army on 12 November 1980.  He completed his initial entry training and he was awarded military occupational specialty 11B (Infantryman).

3.  The applicant's disciplinary history includes the acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go to his appointed place of duty.

4.  On 21 September 1983, court-martial charges were preferred against the applicant for being absent without leave (AWOL) for two prolonged periods from 18 March 1981 to 5 September 1982 and from 26 October 1982 to 15 April 1983.  He returned to military control after civilian authorities arrested him for burglary, theft, and failure to appear before a civil court.

5.  On 23 September 1983, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

6.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial on 7 November 1983 and directed the issuance of an under other than honorable conditions discharge.

7.  The applicant was discharged accordingly on 18 November 1983.  The DD Form 214 issued at the time confirms he completed 6 months and 18 days of net active service.  His service was characterized as under other than honorable conditions.  This form also confirms he had lost time from 18 March 1981 to 17 October 1982 and again from 26 October 1982 to 14 September 1983.

8.  There is no record to show he applied to the Army Discharge Review Board within its statute of limitations for a discharge upgrade.

9.  He provided unofficial transcripts to show he had completed his associate's degree in computers.  The three accompanying letters of recommendation and character reference letters state, in effect, that he was a family man, a dedicated worker, and an honor student who helped his classmates with their assignments and course work.

10.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for AWOL of 30 days or more is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for up to 18 months, reduction to grade E-1, and forfeiture of all pay and allowances.

	b.  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, a discharge under other than honorable conditions is normally considered appropriate.

	c.  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.

	d.  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 discharge should be upgraded due to the passage of time, saying he was young and immature at the time of the incident that led to his discharge.

2.  The applicant was charged under the UCMJ for being AWOL in excess of 30 days for two separate periods.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.

5.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20100012076



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ABCMR Record of Proceedings (cont)                                         AR20100012076



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