IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100023276 


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 discharge under other than honorable conditions (UOTHC) to honorable or general under honorable conditions.

2.  The applicant states he was advised by a State legislator to be absent without leave (AWOL) for a few days and miss his transport to Germany.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and DD Form 214 (Report of Separation from Active Duty) in support of his application.

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's record shows he enlisted in the Regular Army for 2 years on 26 October 1972.  It also shows he reenlisted 15 October 1974 and he trained and served in military occupational specialty 05C (Radio Teletype Operator).  The record further shows he was promoted to sergeant/E-5 on 7 December 1975 and that this is highest rank/grade he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  A separation packet containing all the facts and circumstances surrounding the applicant's separation processing isre not on file in his record.  The record does contain various documents showing the applicant was AWOL when he failed to report for movement to Germany on 1 July 1978.  He remained away for 11 days until returning to military control on 11 July 1978.

4.  A DA Form 4197 (Personnel Action), dated 17 July 1978, which changed the applicant's duty status from AWOL to present for duty contains a remark indicating the applicant disobeyed a lawful order given by an officer to return to his parent unit which was punishable under Article 90 of the Uniform Code of Military Justice (UCMJ).

5.  The record also contains a properly-constituted DD Form 214 that identifies the authority and reason for his discharge.  It confirms he was discharged on 8 August 1978 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  It further shows at the time of his discharge he held the rank/grade of private/E-1 and he completed 3 years, 11 months, and 13 days of creditable active service and accrued 11 days of lost time during the period covered by the DD Form 214.

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 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.  A discharge UOTHC is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial under the provisions of chapter 10; however, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

7.  Army Regulation 635-200 also provides that an HD 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.  It further provides that a GD 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 HD.  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 he was told to be AWOL for a few days to miss movement to Germany has been carefully considered.  However, there is no evidence to support this claim.

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include various documents and a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The documents in the record and the applicant's DD Form 214 confirm he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

4.  In connection with the applicant's discharge, he would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant's record documents no acts of valor or significant achievement; however, it does reveal he intentionally was AWOL to miss movement to Germany and that he disobeyed a lawful order directing him to return to his parent unit.   It further shows he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.

6.  The undesirable discharge the applicant received was normal and appropriate under the regulatory guidance in effect at the time and his overall record of undistinguished service was not sufficiently meritorious to support the separation authority issuing a general discharge at the time of discharge and it does not support an upgrade now.

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)                                         AR20100023276



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ABCMR Record of Proceedings (cont)                                         AR20100023276



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