IN THE CASE OF:	  

		BOARD DATE:	    12 January 2011

		DOCKET NUMBER:  AR20100017116 


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 the character of his discharge and his narrative reason for separation be changed.

2.  The applicant states:

* he was told if he chose to be discharged it would be administrative or a trainee discharge because he had less than 180 days
* he opted to get out of the Army
* he recently found out that the discharge he received was not a trainee discharge
* he never signed his DD Form 214 (Certificate of Release or Discharge from Active Duty) so he is not sure what was put on it
* he told his career counselor that he wanted to be a pilot and he was told there were no vacancies in that career field
* he wanted to wait for a vacancy, but he was pressured into picking another military occupational specialty (MOS)
* he was initially told he could always change his MOS
* he was later told by his company commander and drill sergeant that he could not change his MOS
* after inquiring about an MOS change, he was threatened with physical harm by his drill sergeant
* he made a hasty, immature decision when he was 19 years old because he believed he had been told lies
* he became concerned for his physical safety
* if he had not been lied to by the counselor at the Military Entrance Processing Station and if he had been properly counseled, he may have made a different choice
* consideration should be given to the fact that he has proven himself to be a good citizen and a good Soldier over the last 30 years

3.  The applicant provides:

* a copy of his DD Form 214
* a memorandum from the National Guard Bureau (NGB) Army National Guard (ARNG) Staff Chaplain, dated 16 February 2010
* an interview statement from the Pennsylvania ARNG Joint Forces Chaplain
* Reserve Order Number AR-134, dated 22 October 2008
* two enlisted performance reports
* U.S. Army Continental United States Replacement Center Message Number 8908006
* a letter of recommendation from a retired U.S. Army major general, dated 5 August 1988

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 on 17 February 1981.

3.  The applicant accepted nonjudicial punishment on 9 March 1981 for failure to go to his appointed place of duty.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from 10 March 1981 until he returned to military control on 3 June 1981.  He had 85 days of lost time.

5.  The facts and circumstances surrounding his discharge are not on file.  The DD Form 214 he was issued shows he was discharged on 12 August 1981 under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 3 months and 3 days of net active service during this period.  The applicant's DD Form 214 shows he was not available for signature.

6.  He enlisted in the ARNG on 5 November 1993.  He was discharged from the ARNG on 22 January 1996.

7.  The available records fail to show the date of his enlistment in the U.S. Air Force Reserve.  However, his records show he was discharged from the U.S. Air Force Reserve on 7 October 2008.

8.  A review of the available records fails to reveal the applicant petitioned the Army Discharge Review Board for a change of his character of service and his narrative reason for separation.

9.  The applicant submits a memorandum from the NGB ARNG Staff Chaplain informing the Pennsylvania Adjutant General that he professionally qualifies for appointment as a chaplain in the rank of first lieutenant, if otherwise qualified.  The interview statement from the Pennsylvania ARNG Joint Forces Chaplain provides his opinion of the applicant's eligibility and qualifications for appointment as a chaplain.

10.  The enlisted performance reports he submits shows the duties he performed as a chaplain assistant and how he was rated.  The letter of recommendation from the retired U.S. Army major general was prepared to support his application for enlistment in the Army in 1988.

11.  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.

12.  Paragraph 3-7a of Army Regulation 635-200 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.

13.  Paragraph 3-7b of Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and his supporting documents have been considered.

2.  He is commended for his post-service conduct.  However, there is no evidence in the available records that shows he was told lies or threatened prior to and during his Regular Army enlistment.

3.  The evidence shows he accepted nonjudicial punishment for failure to go to his appointed place of duty.  He had 85 days of lost time due to AWOL.

4.  The facts and circumstances surrounding the applicant's discharge are not on file.  His DD Form 214 shows he was not available for signature.  However, he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  Charges must have been preferred and his request must have included an admission of guilt.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  According to the applicable regulation, a discharge under other than honorable conditions is normally considered appropriate.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100017116



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100017116



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1