IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100016864 


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 discharge be upgraded to honorable.
 
2.  The applicant states he was discharged from the military because of problems he caused due to his youthful immaturity.  He states he is now a productive citizen, has raised a family, and has been steadily employed since his separation.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 4 January 1984;

	b.  DA Form 2-1 (Personnel Qualification Record) and DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court-Martial Conviction);

	c.  college transcripts for an associate's degree in computers; and

	d.  four character reference letters from his employers, pastor, and bank.

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 24 July 1960.  He was 18 years and 2 months of age when he enlisted in U.S. Army Reserve Delayed Entry Program on 10 October 1978.  He enlisted in the Regular Army on 12 June 1979 for a 3-year period.  He completed his initial entry training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  The applicant's disciplinary history includes his conviction by a special court-martial on 17 August 1981 for conspiracy to transfer marijuana and wrongfully possessing marijuana.  His sentence included forfeiture of $344.00 pay per month, confinement to hard labor for 1 month, and a bad conduct discharge.  His discharge was suspended until 3 May 1982, at which time the bad conduct discharge would be remitted.

4.  On 13 October 1981, the applicant went absent without leave (AWOL) from the post personnel control facility.  He returned to military control on 2 February 1982.  On 10 May 1982, he went AWOL and returned to military control on 25 May 1982.  For his second AWOL period, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

5.  On 23 June 1982, the U.S. Army Court of Military Review dismissed the specification of conspiracy and affirmed the remaining findings of guilty and the sentence.

6.  In a memorandum for record, dated 21 December 1983, the Personnel Control Facility Administrative Officer stated that since the court-martial orders were received after the suspension date of 3 May 1982 (the date the bad conduct discharge was to be remitted), the suspension could not be vacated.  Therefore, the applicant "was no longer a bad conduct discharge."  The Headquarters Command Legal Office determined the applicant could be discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, while appealing the remaining portion of his sentence.

7.  On 3 May 1982, court-martial charges were preferred against the applicant for being AWOL from 13 October 1981 to 22 February 1982.

8.  On 4 May 1983, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He indicated he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making his request for discharge.  In his request, he acknowledged that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

9.  On 15 June 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge.

10.  He was discharged on 4 January 1984.  The DD Form 214 issued at the time confirms he completed 4 years, 1 month, and 23 days of net active service.  His service was characterized as under other than honorable conditions.  This form also confirms he had three periods of lost time from 17 August 1981 to 12 September 1981, from 13 October 1981 to 1 February 1982, and from 10 May 1982 to 24 May 1982.

11.  There is no record to show he applied to the Army Discharge Review Board within its 15-year statute of limitations for a discharge upgrade.

12.  He provided four character reference letters that state, in effect, he is a family man, a dedicated worker with an excellent safety record, and that he was in good financial standing with his bank.

13.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for AWOL of 30 days or more is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for up to 18 months, reduction to pay grade E-1, and forfeiture of all pay and allowances.

	b.  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.  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.

	c.  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.

	d.  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 contends that his discharge should be upgraded due to his youth and immaturity at the time of his enlistment.

2.  The applicant was charged under the UCMJ for being AWOL in excess of 30 days from a personnel control facility.  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.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of this case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  While it is commendable that the applicant is now a responsible citizen, this is insufficient to warrant upgrading a properly issued discharge.

5.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.



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)                                         AR20100016864



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ABCMR Record of Proceedings (cont)                                         AR20100016864



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