IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100021052 


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 undesirable discharge be upgraded to general under honorable conditions discharge.

2.  He states prior to going absent without leave (AWOL) his military record was spotless of any deficiencies.  He was given many letters of commendation and recognition for his performance.  He received a compassionate reassignment to Fort Hood, TX.  He and his first sergeant (1SG) did not get along and after his company commander and battalion sergeant major (SGM) rotated things got bad for him.  His battalion executive officer recommended that he request reassignment to Alaska, but his 1SG did not let the request go through.  

3.  He continues that he requested to take leave, but it was denied by his 1SG. However, his 1SG did grant him a three-day pass.  When he returned to work, his 1SG had an Article 15 typed with his name on it.  His 1SG told him that he was AWOL because he did not sign-out on his pass.  His 1SG had his new company commander sign a new standing operating procedure (SOP) that indicated all personnel would sign in and out on pass or leave.  He states that he said many things to his ISG that he should not have said, but he would not sign the Article 15.  He sought assistance from his new battalion SGM, but he did not want to hear his side of the story.  He could not stand the thought of his Army career being ruined by his 1SG, so he went AWOL.

4.  He provides:

* a DD Form 214 (Report of Separation from Active Duty)
* a Letter of Commendation
* Two Certificates of Appreciation
* Three Department of the Army Certificates of Training
* a Certificate of Completion
* a Primary Noncommissioned Officer Course (PNCOC) diploma
* a PNCOC Order of Merit letter
* a DA Form 2166-4 (Enlisted Efficiency Report)
* an Undesirable Discharge Certificate

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 Regular Army on 24 August 1973 for a 4-year term of service.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman). 

3.  A DD Form 458 (Charge Sheet), dated 22 October 1976, shows charges were preferred against the applicant for being AWOL for the period 31 March 
1976 through 13 October 1976.

4.  On 22 October 1976, after consulting with counsel, he submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

5.  He indicated in his request that he understood he could be discharged under other than honorable conditions; 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 (VA); and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit statements in his behalf.
6.  On 16 December 1976, the appropriate authority approved his request for discharge for the good of the service.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 23 November 1976, he was discharged with an undesirable discharge.  He completed about 3 years and 3 months of creditable active service with 196 days of lost time due to AWOL.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, 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. At the time, an undesirable discharge was normally considered appropriate.

8.  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.  It is acknowledged that the applicant's conduct and achievements during his period of service are noteworthy.  However, good service conduct and achievement alone are not a basis for upgrading a discharge and, upon review, his good service conduct, and achievements are not sufficient to mitigate his indiscipline in the Regular Army.

2.  His records show that he had one instance of a lengthy AWOL.  He had completed 3 years and 3 months of service on his 4-year term of service before his separation with a total of 196 days of lost time due to being AWOL.  Based on this fact, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.


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)                                         AR20100021052





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ABCMR Record of Proceedings (cont)                                         AR20100021052



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