BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015571 


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 an upgrade of his discharge.  

2.  He states, in effect, he believes his discharge should be upgraded because he went absent without leave (AWOL) because his wife was pregnant and he went home to be with her and the baby.  

3.  He provides no additional evidence.

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's military records show he enlisted in the Regular Army, in pay grade E-1, on 24 March 1975, for 3 years.  He completed training and he was awarded military occupational specialty 11E (Armor Crewman).  He was advanced to pay grade E-3 on 25 August 1975.

3.  On 17 February 1976, he accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his place of duty on 15 December 1975.  He again accepted punishment under Article 15, UCMJ, on 5 May 1976, for being absent for his appointed place of duty on 22 April 1976.

4.  On 27 December 1976, the applicant's company commander initiated a bar to reenlistment against the applicant for unsatisfactory conduct and efficiency.  The company commander stated the following factors were relevant indicators of untrainability or unsuitability:  the applicant's constant sick calls, numerous counseling statements from superiors, violation of his profile, non-payment of just debts within the unit, poor attitude, and several statements from his peers concerning his apathetic performance.  The bar was approved on 7 February 1977.

5.  He was reported AWOL on 22 June 1977 and dropped from the rolls on 21 July 1977.

6.  On 22 July 1977, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company A, 1st Battalion, 8th Cavalry, 1st Cavalry Division, Fort Hood, Texas.  He was charged with one specification of being AWOL from 22 June 1977 to an unknown date.

7.  He surrendered to military authorities and was returned to military control on 15 August 1977.

8.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a properly constituted DD Form 214 which shows he was discharged in pay grade E-1 on 23 September 1977, 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.  His service was characterized as under conditions other than honorable and he was issued an Under Other Than Honorable Conditions Discharge Certificate.  He was credited with 2 years, 4 months, and 6 days of net active service and 55 days of lost time.

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


10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, specified a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  His contention was considered; however, it does not support an upgrade of his discharge.  His entire record of service was reviewed and based on that review, the reason for discharge was determined to be proper and equitable.  Further, it has been determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his discharge to a general or fully honorable discharge.

3.  The evidence also shows during his period of service, the highest grade he held was pay grade E-3.  He was twice punished under Article 15 and reduced to the lowest pay grade.  Court-martial action was pending against him for one specification of AWOL.  Upon his return to military control, it appears he 
requested discharge in lieu of facing a court-martial.  In doing so, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  

4.  In the absence of evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  

5.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100015571





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ABCMR Record of Proceedings (cont)                                         AR20100015571



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