IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016360


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).

2.  The applicant states he had to go home because his son's mother was in prison and his son was going to be placed in a foster home.

3.  The applicant provides a copy of 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 enlisted in the Regular Army for 3 years on 23 April 1980.  He was single, but he fathered a child with a woman.  The woman and the child lived in California.

3.  The applicant was trained as a cannoneer and assigned to Fort Riley, KS.  On 2 September 1980, he departed Fort Riley in an absent without leave (AWOL) status.  He returned to military control at Fort Ord, CA on 9 January 1981.  

4.  The applicant's records contain a record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from 
2 September 1980 to 8 January 1981, for which he received a forfeiture of $250 pay for 2 months, and 14 days of extra duty.

5.  The applicant went AWOL again from 19 May through 14 December 1981.  He returned to military control at Fort Ord.  While charges were being preferred, he went AWOL again on 21 December 1981 and remained absent through 
17 February 1982.

6.  Court-martial charges were preferred against the applicant for being AWOL.  On 17 March 1982, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation nor did he have any desire for further military service.  He stated that he understood the nature and consequences of the UOTHC discharge that he might receive.

7.  On 19 March 1982, the applicant's request for discharge in lieu of trial by court-martial was forwarded to the approving authority.  On 24 March 1982, the approving authority approved the request and directed a UOTHC discharge be issued.  The applicant was placed on excess leave without pay pending discharge.

8.  On 2 June 1982, the applicant was separated with a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  He had 1 year and 7 days of creditable service on his 3-year enlistment, and 398 days of lost time.

9.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.


10.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

11.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part paragraph 3-7b states that a GD 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 a discharge upgrade and states, in effect, he had to go AWOL to keep his son out of foster care.

2.  The applicant's stated reason for going AWOL is not verifiable; however, even if verified, it is not an excuse for being AWOL for more than 1 year.  If the applicant was having family problems, he could have availed himself of numerous Army resources to help resolve his problems.  If all failed, he could have requested a hardship discharge; his period of AWOL was unacceptable and inexcusable.

3.  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.  There is no indication that the request was made under coercion or duress.

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)                                         AR20100016360



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ABCMR Record of Proceedings (cont)                                         AR20100016360



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