IN THE CASE OF:	  

		BOARD DATE:	    16 February 2011

		DOCKET NUMBER:  AR20100019702 


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 under other than honorable conditions be upgraded to general under honorable condition.

2.  He states he was young and married with a child when he joined the military.  He completed his training and was assigned to Fort Campbell, KY.  After being deployed to Germany for 1 month, he came home to find his house empty with his wife and child gone.  He informed his chain of command and tried to find them without success.

3.  He states that he left without authorization to find them.  He later found them in a motel with another Soldier at Fort Leonard Wood, MO.  At that time he was upset and confused and did not know what to do.  He later got himself together and surrendered himself to military authorities at Fort Leonard Wood.

4.  The applicant provides no additional evidence in support of this case.

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 was born on 1 November 1954.  He enlisted in the Regular Army on 20 February 1976 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 16R (Short Range Air Defense Artillery Crewman).

3.  On 1 November 1977, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for using disrespectful language towards a noncommissioned officer.

4.  On 3 April 1978, he accepted NJP under Article 15, UCMJ, for operating a motor vehicle without insurance.

5.  A DD Form 458 (Charge Sheet), dated 2 November 1978, shows charges were preferred against him for being absent without leave (AWOL) for the period 4 April 1978 through 24 October 1978.

6.  On 3 November 1978 after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

7.  He indicated in his request he understood that he could be discharged under other than honorable conditions and issued an Under Other than Honorable Conditions Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

8.  On 17 November 1978, the appropriate authority approved his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant be issued an Under Other than Honorable Conditions Discharge Certificate.  On 27 November 1978, he was discharged with a characterization of service of under other than honorable conditions.  He completed a total of 2 years, 2 months, and 18 days of creditable active service with 203 days of lost time.

9.  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.

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 contends that he was young at the time of his misconduct and he went AWOL because his wife left him.  However, records show the applicant was 23 years of age at the time of his first offense.  He successfully completed basic combat and advanced individual training and knew the Army's standards of conduct.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline.  In addition, there is no evidence and he has not provided evidence that shows he sought assistance from his chain of command, chaplain, or community support service while coping with his marriage issues.

2.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's records show he received two Article 15's and had one lengthy period of AWOL.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel required for issuance of a general discharge.


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)                                         AR20100019702



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ABCMR Record of Proceedings (cont)                                         AR20100019702



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