IN THE CASE OF:	

		BOARD DATE:	    8 March 2011

		DOCKET NUMBER:  AR20100021426 


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 his discharge under other than honorable conditions be upgraded to honorable or general.

2.  The applicant states:

* his record is unjust because he was under stress and this happened almost 30 years ago
* he is a model citizen
* his first enlistment was honorable

3.  The applicant provides:

* Honorable Discharge Certificate, dated 30 July 1980
* DD Form 214 (Certificate of Release or Discharge 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 enlisted in the Regular Army on 14 October 1977 for a period of 3 years.  He completed training and was awarded military occupational specialty 82C (field artillery surveyor).  On 30 July 1980, he was honorably discharged for immediate reenlistment.  He reenlisted on 31 July 1980 for a period of 3 years.

3.  Nonjudicial punishment (NJP) was imposed against the applicant as follows:

* 6 February 1981 – dereliction of duty
* 3 April 1981 – failure to repair
* 30 December 1981 – pass violation and failure to repair
* 9 April 1982 – pass violation and failure to repair
* 24 May 1982 – absent without leave (AWOL) from 9 May 1982 to 16 May 1982

4.  The applicant's discharge packet is not available.  However, his ABCMR proceedings, dated 15 June 1983, state:

	a.  He was AWOL on 8 June 1982 and returned to military control on 27 June 1982.  On 28 June 1982, charges were preferred against the applicant for the AWOL period.  On 7 July 1982, an additional charge was preferred against the applicant for disobeying a lawful order.  Trial by special court-martial was recommended.

	b.  On 9 July 1982, he consulted with counsel and 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.  He elected not to submit a statement in his own behalf.

	c.  On 16 July 1982, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

5.  He was discharged under other than honorable conditions on 28 July 1982 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 4 years, 7 months, and 20 days of creditable active service with 55 days of lost time.

6.  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.

7.  Army Regulation 635-200, paragraph 3-7a, 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.

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.  Good post-service conduct and the passage of time are normally not a basis for upgrading a discharge.

2.  His record of service during his last enlistment included five NJP's and 55 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an upgraded discharge.

3.  His voluntary 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 was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  In view of the foregoing, there is no basis for granting the applicant's requested relief.



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)                                         AR20100021426



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ABCMR Record of Proceedings (cont)                                         AR20100021426



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