IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017071 


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 upgrade of his under other than honorable conditions discharge to an honorable or general under honorable conditions discharge.

2.  The applicant states he was told that his discharge would be upgraded 6 months after the date of his discharge.  He adds that an upgrade of his discharge would correct an injustice.

3.  The applicant provides no additional documentary evidence in support of 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 enlisted and entered active duty in the Regular Army for a period of 3 years on 6 July 1977.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).  He served overseas in the Republic of Korea from 14 November 1977 to 13 December 1978.

3.  On 11 May 1979, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 10 April 1979 to 8 May 1979.  His punishment consisted of reduction to private first class/E-3 (suspended for 90 days), forfeiture of $113.00 pay for 1 month (suspended for 90 days), 14 days of extra duty, and 14 days of restriction.

4.  On 26 September 1979, the applicant's company commander preferred court-martial charges against him for violation of Article 86, UCMJ, for being AWOL from 14 July to 18 September 1979.

5.  On 27 September 1979, the applicant consulted with legal counsel and he voluntarily requested a discharge 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

	a.  He was afforded the opportunity to consult with counsel.  He was advised he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	b.  He was advised that he could submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant submitted a statement in his own behalf.  He stated, "The Army caused me and my wife to get a divorce and I have one son and now that we are getting a divorce my son will have to grow up without his father to help raise him, and with me getting out I can be with him a lot more.  So I can be around him to be the father image.  So he will grow up to be a better person and for that reason I cannot work for the Army!"

6.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a character of service of under other than honorable conditions.

7.  On 17 October 1979, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to the rank/pay grade of private/E-1.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 1 November 1979 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with service characterized as under other than honorable conditions.  At the time he had completed 2 years and 24 days of net active service.

9.  There is no evidence the applicant was informed that his discharge would be automatically upgraded 6 months after the date of his discharge or within any specified time period subsequent to his discharge.

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

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 10 of the version in effect at the time provided that a member who 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 were 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 was normally considered appropriate.

	b.  Chapter 3, paragraph 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.

	c.  Chapter 3, paragraph 7b, provides that an under honorable conditions discharge 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 his discharge under other than honorable conditions should be upgraded to correct an injustice because he was told this would occur 6 months after his discharge; however, his discharge was not upgraded.

2.  There is no evidence of record that shows the applicant was advised that his discharge would be automatically upgraded 6 months after his discharge.  Thus, the evidence of record does not support the applicant's contention.  Moreover, the U.S. Army does not automatically upgrade a discharge after a specified period of time.

3.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the offense that led to his discharge far outweighs his overall record.  Moreover, there is no evidence of injustice in the applicant's case.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  The evidence of record shows the applicant was AWOL from 10 April 1979 through 7 May 1979 (a period of 28 days) and from 14 July through 17 September 1979 (a period of 66 days), for a total of 94 days of lost time or more than 3 months during the period of service under review.  Thus, the evidence of record shows the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.



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)                                         AR20100017071



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ABCMR Record of Proceedings (cont)                                         AR20100017071



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