IN THE CASE OF:	

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100017278 


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 undesirable discharge be upgraded to general, under honorable conditions.

2.  The applicant states he did not get a fair hearing.  He was not able to talk and his hand was hurt while in the service.

3.  The applicant provides no additional documentation.

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 3 April 1979.  Upon completion of initial entry training he was awarded military occupational specialty 19E (Armor Crewman).

3.  He accepted nonjudicial punishment on 9 May 1980 for being absent from his unit without authority during the period 17 - 21 April 1980 and on 24 April 1981 for two specifications of failing to go at the time prescribed to his appointed place of duty.

4.  A DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence) indicates he was in an absent without leave status (AWOL) from 
3 November 1982 through 9 December 1982.

5.  The applicant's separation proceedings are not available for review; however, his Official Military Personnel File contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged 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 with his service characterized as under other than honorable conditions.  He completed 3 years, 10 months, and 2 days of creditable active service with 
42 days of lost time.

6.  On 21 March 1989, the Army Discharge Review Board denied his request for an upgrade of his discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.

8.  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 contention that his discharge should be upgraded was carefully considered.

2.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations, in which the service member must admit guilt of the charges.  Although his separation proceedings are not available for review with this case, it is presumed he voluntarily requested discharge from the Army to avoid a trial by court-martial.

3.  The available evidence shows he accepted nonjudicial punishment on 
2 occasions and had 42 days of lost time due to being AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general, under honorable conditions discharge.

4.  Lacking evidence to the contrary, it is presumed that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the characterization of his service and reason for his discharge were both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.

5.  In view of the above, his 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 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)                                         AR20100017278



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ABCMR Record of Proceedings (cont)                                         AR20100017278



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