IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012699 


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

2.  The applicant states he left his unit in an absent without leave (AWOL) status for a year because of personal problems.  He continues by stating he reported back to his unit to clear his name and he was not punished for being absent.  Prior to going AWOL he had a clean record.  He now asks for help getting his discharge upgraded. 

3.  The applicant did not provide any supporting documents with his application. 

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 Regular Army on 16 October 1978 for a 3-year period.  He completed initial entry training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank he attained was sergeant (SGT)/pay grade E-5.

3.  The applicant's service records are devoid of documents showing he had a disciplinary history under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and there are no records of a court-martial conviction.

4.  On 9 April 1992, court-martial charges were preferred against the applicant for being AWOL from his unit at Fort Ord, CA from 6 March 1989 to 6 April 1992.  In his personal statement, he indicated he went AWOL because his wife kept complaining about him to his unit first sergeant and he did not want to get his chain of command involved in his personal affairs.  

5.  On 10 April 1992, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, indicating that he was making the request of his own free will and that he had been afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged he understood he could be discharged under other than honorable conditions, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may expect to encounter substantial prejudice in civilian life if he were issued 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 court-martial on 8 May 1992 and directed that he be issued an under other than honorable conditions discharge.  In addition, he was reduced to the lowest enlisted grade of private/pay grade E-1.

7.  The applicant was discharged accordingly on 21 May 1992.  The DD Form 214 issued at the time confirms he completed 10 years, 5 months, and "50" days of net active service this period.  His service was characterized as under other than honorable conditions.  His DD Form 214 confirms he had lost time from 6 March 1989 to 5 April 1992 which equals approximately for 3 years and 1 month.



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

9.  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 is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to grade E-1, and a total 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 he went AWOL for a year due to personal problems.  He contends his discharge should be upgraded due to the passage of time; he had a clean record with no misconduct prior to going AWOL.  



2.  As a noncommissioned officer, the applicant should have known the consequences of his decision to go AWOL.  He stated in his application he was AWOL for a year.  However, his record shows he was AWOL for 3 years and      1 month which is significantly more than a year.  Based on his extended absence, the applicant was charged under the UCMJ for being AWOL in excess of 30 days.  While he states he was not punished when he returned to military control, in effect, he was punished because he was charged with the commission of an offense that was in violation of the UCMJ that carried a maximum punishment of a dishonorable discharge, confinement for up to 18 months, and a forfeiture of pay and allowances.  He requested an administrative discharge under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial avoiding confinement at a Federal penitentiary or the U.S. Disciplinary Barracks and a felony conviction.

3.   As required by Army regulation, he did meet with counsel and he was informed of his rights to include the option of requesting a discharge or going to trial.  

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

5.  The available evidence is not sufficiently mitigating to warrant an upgrade of the applicant's discharge to general or honorable. 

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)                                         AR20100012699



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ABCMR Record of Proceedings (cont)                                         AR20100012699



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