IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100023067 


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 an upgrade of his other than honorable conditions discharge to a general discharge under honorable conditions. 

2.  The applicant states while in the Army he developed a sinus problem.  He was stationed at Fort Riley, KS and was treated numerous times for this condition.  He eventually decided to have surgery for this condition but went absent without leave (AWOL) after he saw another Soldier in severe pain returning from the same surgery he was scheduled for.  After several months, his father talked him into returning to military control.  He states going AWOL was not the proper thing to do but he was young and scared and did not have any idea of what else to do.  He states he was a good Soldier and wanted to do his duty for his country.

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.  On 29 November 1976, the applicant enlisted in the Regular Army for a period of 4 years.  Records show the applicant was 18 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty 13B (Cannon Crewmember).  The highest grade the applicant attained was private/pay grade E-2.

3.  On 6 September 1977, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 16 August 1977 to 19 August 1977.  The punishment consisted of a forfeiture of $50.00 pay.

4.  On 20 October 1978, charges were preferred against the applicant for being AWOL from 9 June 1978 to 9 October 1978.

5.  On 30 October 1978, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  His request for a discharge states he had not been subjected to coercion with respect to this request for discharge.

    a.  He was afforded the opportunity to consult with counsel.  He was advised that he may 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, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

    b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant did submit a statement in his own behalf.  

6.  On 13 November 1978, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation           635-200, with a character of service of under other than honorable conditions.

7.  The applicant’s DD Form 214 shows he was discharged on 27 November 1978 in accordance with chapter 10, Army Regulation 635-200, for the good of the service with service characterized as under other than honorable conditions.  At the time he had completed 1 year, 7 months, and 23 days of net active service this period and he had 129 days of lost time. 

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

    a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate, under other than honorable conditions, would normally be furnished to an individual who was discharged for the good of the service.

    b.  Army Regulation 625-200, 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.

    c.  Army Regulation 625-200, 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 was 18 years of age when he enlisted in the Army.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. 

3.  The evidence of record shows the applicant was AWOL for a total 129 days during the period of service under review.  Thus, the evidence of record clearly shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and the applicant is not entitled to a general discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20100023067





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ABCMR Record of Proceedings (cont)                                         AR20100023067



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