BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100019455


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 an upgrade of his discharge to general, honorable, or anything besides under other than honorable conditions.  He also requests correction of his records to show that he was discharged for medical reasons.

2.  The applicant states he was forced out of the Army by psychological harassment along with sexual molestation.

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.  On 27 June 1978, the applicant enlisted in the Regular Army for 4 years.  He completed training as an infantryman.

3.  On 16 October 1980 the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 2 July 1979 until 7 July 1979 and 30 September 1979 until 24 September 1980.  He acknowledged receipt of the notification and after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he elected not to submit a statement in his own behalf and he acknowledged he understood the following:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

4.  The appropriate authority approved the request for discharge on 6 November 1980.  On 13 January 1981, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 6 months, and 18 days of net active service.

5.  A review of the available records fails to show that the applicant was diagnosed with any medical condition that would have warranted processing him for discharge through medical channels.

6.  His records do not show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

7.  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.


8.  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.

9.  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.  

10.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  However, they are not substantiated by the evidence of record.  There is no evidence in his record, nor has he submitted any evidence showing he was suffering from a medical condition that would have warranted processing him for discharge through medical channels.

2.  The applicant’s records show he was AWOL from 2 July 1979 until 7 July 1979.  He went AWOL again on 30 September 1979 and he remained absent in desertion until he returned to military control on 24 September 1980.  He submitted a request for discharge under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

3.  The applicant went AWOL twice and his record contains no explanation as to why he went AWOL.  His record does not contain evidence of psychological harassment or sexual molestation.

4.  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 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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100019455



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