IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100015339 


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 to have his discharge upgraded to honorable.

2.  The applicant states aggravating factors contributed to his other than honorable discharge.  He was 17 years old when he enlisted in the United States Army Reserve in 1978.  As the oldest of four children he believed that leaving home to join the Army would be one less mouth to feed.  He went absent without leave (AWOL) twice during training because he was worried about who was going to protect his mother and siblings from his alcoholic, abusive father.  He was torn between wanting to better himself and protecting his mother.  Since his discharge he has been married to the same woman for 32 years, has three children, and seven grandchildren.  He regrets not staying in the Army and serving his country; however, he was young and overwhelmed by his circumstances.

3.  The applicant provides no additional documentation.

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.  On 14 February 1978, he enlisted in the United States Army Reserve at the age of 17 years and 10 months old.  On 24 August 1978, he entered active duty and reported to Fort Gordon, GA, on 19 February 1978, for advanced individual training.

3.  On 19 May 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, being absent without leave from on or about 16 April 1978 through 15 May 1978.

4.  The records show he was reported AWOL for a second time on 24 August 1978, dropped from the rolls on 22 September 1978, and surrendered to military authorities at Fort Knox, KY on 25 October 1978.

5.  The discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was administratively discharged on 8 January 1979, under the provisions of Army Regulation 600-200, Chapter 10, conduct triable by court- martial.  His service was characterized as under conditions other than honorable.  He completed 7 months and 4 days of creditable active duty and had 62 days of lost time due to AWOL.

6.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

7.  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.

8.  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.

9.  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 requests to have his discharge upgraded to honorable.

2.  He contends he was young and overwhelmed by his circumstances.  Records show he was 18 years of age at the time of his offenses and there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Notwithstanding his assertion that he feared for the safety of his mother and siblings, there is no available evidence to show his AWOL was a reasonable solution to this situation.  Therefore, the type of discharge and reason were appropriate considering all of the facts of the case.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100015339





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ABCMR Record of Proceedings (cont)                                         AR20100015339



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