IN THE CASE OF:	  

		BOARD DATE:	    15 February 2011

		DOCKET NUMBER:  AR20100020790 


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 an honorable or a general discharge.

2.  The applicant states he was on leave and his discharge was unfounded.

3.  The applicant provides DA Form 31 (Request and Authorization for Leave) and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 8 February 1978, the applicant enlisted in the Regular Army for 3 years.  He completed training as an ADA Short Range Missile Crewman.

3.  Nonjudicial punishment was imposed against him on 28 November 1978, for failure to go to his appointed place of duty.

4.  The applicant went on leave on 9 December 1980 and did not return on 5 January 1980 as scheduled.  He remained absent without leave (AWOL) until he was apprehended and confined by civil authorities on 7 April 1980.  He returned to military control on 7 May 1980.

5.  On 14 May 1980, the applicant was notified that charges were pending against him for being AWOL.  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 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

6.  The appropriate authority approved the request for discharge on 11 July 1980. On 25 July1980, 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 2 years, 1 month, and 17 days of net active service.

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

8.  The DA Form 31 the applicant submits shows he was placed on excess leave from 16 May 1980 through 14 July 1980.




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.  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.

11.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  However, they are not substantiated by the evidence of record.  

2.  The applicant’s records show he was on leave as he contends; however, he failed to return as scheduled on 5 January 1980.  He was AWOL from 5 January 1980 until he was apprehended and confined by civil authorities on 7 April 1980.  He returned to military control on 7 May 1980.  He was placed on excess leave from 16 May 1980 through 14 July 1980, pending approval of his request for discharge.  His request for discharge was approved on 11 July 1980 and he was discharged on 25 July 1980.

3.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial.  There is no evidence in the available record, nor has he submitted any evidence showing that his discharge was unfounded.

4.  In view of the foregoing, the applicant’s request for an upgrade to an honorable or general discharge 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)                                         AR20100020790



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ABCMR Record of Proceedings (cont)                                         AR20100020790



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