IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100017610 


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 discharge be upgraded.

2.  The applicant states he was provided the opportunity to attend college for a semester based on reenlistment.  He found some of the classes to be too advanced for him at the time and dropped the classes which caused him to go from a full-time to a part-time student.  He did not inform his chain of command of the changes and when the unit found out he was ordered to report to the unit.  He was confronted by his superiors about his status and class schedule which he explained.  He was placed back on active duty and 2 weeks later he was charged with 59 days of absence without leave (AWOL).  He contends he was on a 90-day leave and not AWOL because he attended classes during his leave.  He adds that his failure to report the changes in his classes was wrong and he deeply regrets it.

3.  The applicant provides a 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 on 5 March 1980.  He completed his initial entry training and was awarded military occupational specialty 35M (Multichannel Communications Equipment Operator).  On 14 September 1982, he reenlisted for 3 years.

3.  His DD Form 4 (Enlistment/Reenlistment Document) shows he reenlisted for station of choice.  It also shows he was not entitled to a bonus as a result of this reenlistment.

4.  A DA Form 4187 (Personnel Action), dated 8 October 1982, indicates that he departed AWOL on 8 October 1982.  A second DA Form 4187, dated 
7 December 1982, indicates he surrendered to military authorities on 
6 December 1982.

5.  His record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  His record does contain a properly-constituted DD Form 214 which identifies the authority and reason for his separation.

6.  His DD Form 214 shows he was discharged on 16 February 1983, in the rank/grade of private (PV1)/E-1.  It also shows he was discharged 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, with his service characterized as under other than honorable conditions.  It also shows he had accrued 59 days of lost time.

7.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.  An under other than honorable conditions discharge is normally considered appropriate.
9.  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

10.  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 request that his discharge should be upgraded has been carefully reviewed.

2.  His record is void of the facts and circumstances surrounding his discharge.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army to avoid a trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his contentions that he was attending college as a result of reenlistment and that he was in fact on a 90-day authorized leave and not AWOL are not supported by the evidence contained in his records.

3.  His record of indiscipline includes 59 days of lost time.  Based on this record of indiscipline and his apparent voluntary request for discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100017610



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ABCMR Record of Proceedings (cont)                                         AR20100017610



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