IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100018641 


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 a general discharge.

2.  The applicant states that he is sorry for what he did and he knows he should have been a better Soldier.  He states that he regrets what he did and asks the Board to upgrade his discharge to a general discharge.

3.  The applicant provides a one-page letter explaining 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 in the U.S. Army Reserve (USAR) in Fargo, ND under the Delayed Entry Program (DEP) on 29 June 1982 for a period of 6 years and training as a turret mechanic.  At the time he completed his contract processing he indicated that he was single.

3.  He was discharged from the USAR DEP on 14 September 1982 and he enlisted in the Regular Army on 15 September 1982 for a period of 3 years.  At that time he indicated that he was married.  He was transferred to Fort Knox, KY to undergo his one-station unit training (OSUT).

4.  On 6 December 1982 the applicant submitted a request for a swap assignment in which he requested to swap his assignment to Europe with a classmate who had orders to Fort Riley, KS.  He stated that an assignment to Europe would pose a financial hardship on his family.  His request was subsequently approved on 13 December 1982.

5.  However, on 8 December 1982 he went absent without leave (AWOL) before he completed his training and he remained absent in desertion status until he returned to military control at Fort Carson, CO on 16 June 1983 where charges were preferred against him for the AWOL offense.

6.  On 21 June 1983, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service 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.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charge against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected to submit a statement or explanation in his own behalf in which he stated that his wife made him choose between her or the Army.

7.  The appropriate authority (a major general) approved his request on 24 June 1983 and directed that the applicant be discharged with an under other than honorable conditions discharge.

8.  Accordingly, he was discharged under other than honorable conditions on 19 July 1983 under the provisions of Army Regulation 635-200, chapter 10, for 


the good of the service - in lieu of trial by court-martial.  He had served 3 months and 27 days of total active service with 190 days of lost time due to AWOL.

9.  On 17 May 1994 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that his discharge was unjust because he had a problem with drugs and alcohol at the time and he received no help for his problems.  On 14 January 1997, after reviewing all of the facts and circumstances the ADRB determined that his discharge was both proper and equitable under the circumstances and unanimously voted to deny his request.

10.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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 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.  

2.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.


3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

4.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant the relief he seeks.  He was AWOL for more time than he served and his service simply does not rise to the level of a general discharge.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20100018641



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ABCMR Record of Proceedings (cont)                                         AR20100018641



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