IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100015843 


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 more favorable discharge.

2.  The applicant states that the issue of his discharge has followed him all of his life and he has never disclosed any of his military service because of his discharge.  He goes on to state that after 33 years it is time to resolve the matter.

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 was born on 29 January 1955 and enlisted in Albuquerque, New Mexico, on 13 September 1974 for a period of 3 years, training as an infantryman, and assignment to the 8th Infantry Division in Europe.

3.  He completed his one-station unit training at Fort Polk, Louisiana, and was transferred to Germany on 21 January 1975 for assignment to an infantry company in Baumholder, Germany.  He was advanced to pay grade E-4 on 13 December 1975.

4.  The applicant took ordinary leave to the continental United States from 13 March 1976 to 13 April 1976 with a report date back to his unit on 14 April 1976.  However, he did not report back to his unit and was reported as being absent without leave (AWOL).  He remained absent in desertion until he was apprehended by civil authorities in Crownpoint, New Mexico, on 19 November 1977.  He was returned to military control at Fort Sill, Oklahoma, where charges were preferred against him for the AWOL offense.

5.  On 6 December 1977 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 (Personnel Separations), 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 that 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 elected not to submit a statement in his own behalf.

6.  The appropriate authority (a major general) approved his request on 20 December 1977 and directed that the applicant be discharged under other than honorable conditions.

7.  Accordingly, he was discharged under other than honorable conditions on 28 December 1977 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had 2 years, 8 months, and 9 days of total active service and 242 days of lost time due to AWOL.

8.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and was granted a personal appearance before the ADRB Travel Panel in Albuquerque on 21 October 1982.  He contended at that time that he went AWOL because he became ill after being appointed as a squad leader.  He stated he did not like the responsibility and believed he could not handle the job.  He went on to state he is a Navajo Indian and he came back home to be treated by a medicine man of the tribe.  He also claimed he tried to turn himself in twice and no one would accept him.

9.  After reviewing the evidence of record and testimony presented by the applicant, the ADRB determined his discharge was both proper and equitable under the circumstances and denied his request for an upgrade of his discharge on 16 November 1982.

10.  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 him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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.  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 hopes of avoiding a punitive discharge and having a felony conviction on his record.  Accordingly, the type of discharge directed and the reasons were therefore appropriate under the circumstances.

3.  The applicant's contentions have been noted; however, that alone is not sufficiently mitigating to warrant an upgrade of his discharge when considering the extensive length of his absence during such a short period of service and his overall undistinguished record of service.

4.  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 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)                                         AR20100015843



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ABCMR Record of Proceedings (cont)                                         AR20100015843



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