IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100023637 


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.

2.  The applicant states he was not treated fairly at the time and contends that prior to his misconduct he had been a good Soldier and leader.  He goes on to state he was a good leader with letters of commendation through basic and advanced individual training (AIT) until the commander felt otherwise.  He also states his commander had the highest absent without leave (AWOL) rate at Fort Hood, Texas.  He further states that after his discharge he had to go home to see his mother and being young did not think to take care of his military life and now would like to correct it.  He concludes by stating he is the founder and chief executive officer of a non-profit youth program and he has to show right even if he was wronged.

3.  The applicant provides no additional evidence with 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 was born on 15 October 1956.  He was single when he enlisted in the Regular Army on 29 March 1977 for a period of 4 years and training as a still photographer.

3.  He completed basic training at Fort Leonard Wood, Missouri, and was transferred to Lowry Air Force Base, Colorado, on 4 June 1977 for AIT.

4.  It appears the applicant married a member of the Air Force while in AIT.  On 14 September 1977, he was released from this AIT due to academic deficiency.

5.  On 31 October 1977, he was transferred to Fort Lee, Virginia, to attend AIT as a unit supply specialist.  He completed training and was transferred to Fort Hood, Texas, for assignment to an engineer company.

6.  On 29 August 1978, he was AWOL and remained absent until he was returned to military control on 29 September 1978.

7.  He again was AWOL on 6 October 1978 and remained absent in desertion until he was returned to military control on 26 October 1978.  Charges were preferred against him at Fort Hood on 27 October 1978.

8.  On 8 November 1978 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 also elected to submit a statement in his own behalf wherein he asserted that the Army had not been good to him because his personal life and the Army did not mix.  He went on to state his wife was in the Air Force and he could not stand being apart from her.  He went on to state the Army hurt his family by keeping them apart and contended that Army life was not for him because his family needed him and he needed them.

9.  His chain of command recommended that his request for discharge be denied and that he be tried by court-martial; however, the appropriate authority (a brigadier general) approved his request for discharge on 4 December 1978 and directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions on 11 January 1979 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 7 months, and 18 days of total active service and had 56 days of lost time due to AWOL.

11.  A review of his records failed to show any indication the applicant applied for a compassionate reassignment or a joint-domicile assignment.

12.  On 25 May 1981, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended that he knew he was wrong for being AWOL, but his commander did not give him time to take care of his personal problems and did not care.  He also contended that he was a good Soldier.  After reviewing all of the available evidence, the ADRB determined his discharge was both proper and equitable and denied his request on 16 February 1983.

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 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 his repeated absences, 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)                                         AR20100023637



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ABCMR Record of Proceedings (cont)                                         AR20100023637



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