BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100013310 


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.

2.  The applicant states he was absent without leave (AWOL) when he left the military to see his first-born son arrive in the world.  He goes on to state that he had enough leave time accrued to take off.  He also states that he gave the military 3 years of his life and served faithfully and honorably and the only infraction during his service was when he left to see his son's birth.

3.  The applicant provides no additional 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 the Regular Army on 29 April 1980 for a period of 3 years, training as a materiel storage and handling specialist, and assignment to Fort Bragg, North Carolina.

3.  He successfully completed training and was transferred to Fort Bragg for assignment to a quartermaster company as a storage specialist.

4.  On 9 October 1980, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful possession of marijuana.

5.  In January 1981, he was transferred to a maintenance company at Fort Bragg.  On 29 June 1981, NJP was imposed against him for being disrespectful in language toward a first sergeant.

6.  The applicant was married in Aiken, South Carolina, on 2 January 1982.

7.  On 14 April 1982, NJP was imposed against him for disobeying lawful orders from two noncommissioned officers.

8.  On 19 July 1982, he went AWOL and remained absent in desertion until he surrendered to military authorities at Fort Gordon, Georgia, on 30 November 1982 and was transferred to Fort Bragg where charges were preferred against him on 7 December 1982 for the AWOL offense.

9.  At the time of his return to Fort Bragg, he was interviewed by the commander (a major) of the Personnel Control Facility who indicated the applicant stated he was AWOL because of his inability to follow military discipline.  The commander further indicated the applicant stated he had gone home on a weekend pass to be with his pregnant wife and that she delivered the baby while he was home.  He called his unit to request leave and his request was denied.  He remained at home anyway and he became afraid of going to jail so he remained AWOL.  He further indicated he wanted to be discharged from the service.

10.  On 8 December 1982 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

11.  The appropriate authority approved his request on 1 February 1983 and directed that he be discharged under other than honorable conditions.

12.  Accordingly, on 10 February 1983 while in an excess leave status, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had 2 years, 5 months, and 1 day of total active service and had 134 days of lost time due to AWOL.

13.  There is no indication in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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 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.

2.  Accordingly, the type of discharge directed and the reasons were therefore appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hope of avoiding a punitive discharge and having a felony conviction on his record.

4.  The applicant's contention that the AWOL offense was his only infraction during his service was noted and appears to lack merit.  He received NJP on at least three occasions and his explanation of his circumstances is not sufficiently mitigating to warrant an upgrade of his discharge when considering the extensive length of his absence and his overall undistinguished record of service.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100013310



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ABCMR Record of Proceedings (cont)                                         AR20100013310



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