IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100014333 


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, in effect, upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states:

* when he signed his discharge he was told the discharge would be automatically upgraded to a general discharge or he would not have signed it
* he had just reenlisted and his mother passed away
* he was young and went through some mental and emotional problems
* he was in denial and trying to be strong and he did not ask for or get help because of his denial

3.  The applicant provides:

* his mother's obituary which shows she died on 10 May 1982
* his DD Form 214 (Certificate of Release or Discharge 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 was born on 21 November 1960.  He enlisted in the Regular Army on 30 August 1979 for a period of 3 years.  He successfully completed his training and he was awarded military occupational specialty 13B (cannon crewman).  On 21 March 1982, he was honorably discharged for immediate reenlistment.  He reenlisted on 22 March 1982 for a period of 4 years. 

3.  The applicant went absent without leave (AWOL) on 21 July 1982 and returned to military control on 23 August 1982.  He went AWOL again on           14 September 1982 and returned to military control on 11 March 1983.  He went AWOL a third time on 14 March 1983 and returned to military control on             25 March 1983. On 30 March 1983, charges were preferred against the applicant for the AWOL periods.

4.  On 30 March 1983, the applicant consulted with counsel and he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

5.  On 16 April 1983, the separation authority approved the applicant's request for discharge and directed the applicant be furnished an under other than honorable conditions discharge.

6.  Accordingly, on 29 April 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had served a total of 3 years and 20 days of total active service with 219 days of time lost.

7.  There is no medical evidence of record which shows the applicant was diagnosed with any mental condition prior to his discharge.

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

9.  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.

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 U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The applicant contends he was young and went through some mental and emotional problems.  However, age is not a sufficiently mitigating factor.  He was almost 19 years old when he enlisted and he successfully completed training.  In addition, he served almost 3 years prior to going AWOL the first time.  There is no medical evidence of record which shows he was diagnosed with any mental condition prior to his discharge.


3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.  

4.   The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's record of service during his last enlistment included three periods of AWOL for which court-martial charges were preferred and 219 days of time lost.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general 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)                                         AR20100014333



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ABCMR Record of Proceedings (cont)                                         AR20100014333



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