IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100012685 


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 to general/under honorable conditions or to honorable.

2.  The applicant states, in effect:

* He was discharged from the military due to his lack of education
* He deserves a better discharge due to being truthful and the Army made a mistake in accepting him
* His brother-in-law knew he had only completed the 7th grade and still recruited him to join the Army
* He does not deserve a bad discharge because of his educational status and abilities
	 
3.  The applicant provided a copy of his school records indicating 7th grade is the highest level achieved.

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, and 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 20 April 1978.  He was awarded the military occupational specialty (MOS) 19E (Armor Crewman). 

3.  Records show the applicant was apprehended by civilian authorities on 1 March 1981 for public intoxication.

4.  Charges were preferred against the applicant on 7 April 1981 for being absent without leave during the period 13 August 1978 through 3 April 1981. 

5.  On 8 April 1981, the applicant consulted with legal counsel and was advised on 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 were 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 21 May 1981, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge and the applicant was discharged accordingly.   The applicant completed 5 months and 12 days of creditable active military service and accrued a total of 964 days of time lost due to AWOL.    

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

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

2.  Records show he was charged with the commission of an offense 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.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  Although the applicant contends he was falsely recruited into the Army based on his educational level, his records clearly show that he was AWOL for 964 days.  That, not his education level, was the reason he was discharged.

4.  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 and lost time also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or general/under honorable conditions 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)                                         AR20100012685



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ABCMR Record of Proceedings (cont)                                         AR20100012685



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