IN THE CASE OF:	  

		BOARD DATE:	    3 February 2011

		DOCKET NUMBER:  AR20100020124 


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 he was young and made a mistake.

3.  The applicant provides his DD Form 214 (Report of Separation 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 was born on 9 February 1959 and he enlisted in the Army National Guard (ARNG) on 25 August 1977.  He was ordered to active duty for training (ADT) with a reporting date of 9 October 1977.

3.  It appears he did not report for ADT and he was placed on an absent without leave (AWOL) status effective 9 October 1977.

4.  He was subsequently discharged from the ARNG on 7 December 1977 due to continuous and willful absences from military duty and reassigned to the U.S. Army Reserve (USAR) with assignment to the U.S. Army Reception Station, Fort Jackson, SC.

5.  He was further placed in an AWOL status effective 8 December 1977 and he was dropped from the rolls of the Army on 6 January 1978.

6.  A DA Form 4187 (Personnel Action), dated 3 November 1978, indicates he was apprehended by civilian authorities at Gainsville, GA on 26 October 1978 and returned to military control on the same date.

7.  On 3 November 1978, charges were preferred against him for the AWOL offense.

8.  On 6 November 1978, he consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

9.  He acknowledged in his request that he understood he could be discharged under other than honorable conditions discharge and furnished an Under Other Than Honorable Conditions Discharge Certificate, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

10.  On 12 December 1978, the separation authority approved his request for discharge and directed his reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On

23 January 1979, he was discharged accordingly.  He had completed 2 months and 28 days of total active military service with 322 days of time lost due to AWOL.

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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.

13.  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 has been carefully considered.

2.  He contends that he was young and made a mistake; however, age is not a sufficiently mitigating factor.  Records show he was 18 years and 8 months at the time of his first AWOL offense and there is no evidence indicating he was any less mature than other Soldiers of the same age who completed their terms of military service.

3.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

4.  His voluntary request for discharge 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.  There is no indication the request was made under coercion or duress.

5.  His record of indiscipline includes 322 days of time lost due to AWOL that resulted in court-martial charges against him.  Based on this record of indiscipline and in view of the fact he voluntarily requested 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 a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

6.  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)                                         AR20100020124



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ABCMR Record of Proceedings (cont)                                         AR20100020124



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