IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100023300 


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 under mental duress due to his family situation at home and he was unjustly denied a compassionate reassignment.  He also states he sought the assistance of his commander, noncommissioned officers, and the Red Cross and his commander became unbearable.  He further states it was his intent to continue his career and to handle his personal affairs.

3.  The applicant provides a copy of a letter from a captain in the Judge Advocate General's Corps to his commander at Fort Carson, Colorado, supporting his request for reassignment to the Washington, DC, area.

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 16 April 1981 for a period of 3 years and training as a military policeman.  He completed one-station unit training at Fort McClellan, Alabama, and was transferred to Fort Carson, Colorado, on 10 August 1981 for duty as a military policeman.

3.  On 17 February 1982, nonjudicial punishment was imposed against the applicant for being disrespectful in language towards a superior noncommissioned officer (NCO) and for willfully disobeying a lawful order from a superior NCO.

4.  The applicant's commander also initiated action to reclassify the applicant out of the military police career management field on 17 February 1982.  He cited as the basis for his recommendation that:

* he was counseled for being rude, impolite, and unprofessional towards the public
* he was charged with careless driving as a result of an accident he caused and received a letter of reprimand and suspension of his license for 30 days
* he was counseled for disobeying a senior Soldier, disobeying a posted regulation, and insubordination
* he was counseled for failure to maintain his assigned area, disrespect, and failure to comply with a posted duty roster
* he was counseled for failure to clean his room
* he was counseled for lack of initiative, immature behavior and a lackadaisical approach to the responsibilities of a military police Soldier
* he was counseled for job performance, failure to make formations, and failure to follow instructions
* he was counseled for a filthy living area
* he was counseled for constant complaining and failure to clean his assigned living area
* he was counseled again for reckless driving and his license was suspended for 30 days
* he was counseled for poor military bearing and behavior

5.  On 22 February 1982, the applicant's commander initiated a bar to reenlistment against the applicant citing the same reasons as used in the request to reclassify him.  The applicant elected not to submit a statement in his own behalf and the battalion commander approved the bar on 24 February 1982.

6.  On 23 April 1982, nonjudicial punishment was imposed against him for failure to go to his place of duty.

7.  On 19 May 1982, he was transferred to a field artillery battery and was reclassified to military occupational specialty 13B (cannon crewman).

8.  On 28 October 1982, he departed for assignment to Italy with a reporting date of 12 December 1982.  However, the applicant did not report as ordered and was reported as being absent without leave (AWOL).  He remained absent in desertion until he was returned to military control at Fort Belvoir, Virginia, on 4 March 1983.  He was transferred to the Military Control Facility at Fort Dix, New Jersey, where charges were preferred against him on 7 March 1983 for his absence.

9.  On 7 March 1983 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement or explanation in his own behalf.

10.  The appropriate authority (a major general) approved his request for discharge on 25 March 1983 and directed that he be discharged under other than honorable conditions.

11.  Accordingly, he was discharged under other than honorable conditions on 6 April 1983 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 8 months, and 29 days of total active service and had 81 days of lost time due to AWOL.

12.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence, his undistinguished record of service, and the short period of his service.  His service simply did not rise to the level of under honorable conditions.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20100023300



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ABCMR Record of Proceedings (cont)                                         AR20100023300



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