IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100023691 


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

2.  He states he loves his country and feels he let his country down with his immature attitude as a man in the armed forces.  He also let his children down.  The respect of his kids, of which two are in the service now, and their morals, which he taught them, is from what he learned as a young man in the U.S. Army. The Army taught him about integrity and morals.  He joined the Army at 18 years of age.  At that age, he failed the responsibilities he was given.  He was overwhelmed with those responsibilities at the time and misused his freedom and that is impacting his life today at age 50.

3.  He further states the sentence which was imposed on him was a life sentence of dishonorable service.  He feels this is an injustice to him and his family to be scrutinized as people with no honor.  What he did was wrong and he is sorry and apologizes for his inappropriate behavior.  He thinks 30 years of living under the imposition of the discharge is enough.  He encouraged his sons to enlist in the service so the service could shape their character and enhance their chances of being successful in life.

4.  He provides his 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 (RA) on 4 October 1978 for a period of 3 years in pay grade E-1.  On the date of his enlistment in the RA, he was 18 years and 7 months of age.

3.  He completed training and he was awarded military occupational specialty 13B (Cannon Crewman).  He was advanced to pay grade E-2 on 4 April 1979.  He served in Germany from 5 January 1979 through 24 August 1980.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 15 April 1979 for being absent without leave (AWOL) from 27 to 28 March 1979
* 12 June 1979 for being AWOL from 28 to 30 May 1979
* 8 July 1980 for failing to go at the time prescribed to his appointed place of duty on 25 June 1980

5.  On 25 August 1980, he was reported AWOL and he was dropped from the rolls (DFR) of his unit on 25 September 1980.  He subsequently returned to military control on 25 November 1980.

6.  An FC Form 1424 (Commander's Information/Summary Sheet), dated 1 December 1980, stated the applicant's mother was in a mental hospital because she could not stand for her son to be away from her.  He went home on emergency leave and just stayed.  The applicant was not retainable due to family and personal problems.  The applicant could not adapt and cope with military requirements and should be eliminated under the provisions of chapter 10 [Army 

Regulation 635-200 (Personnel Separations - Enlisted Personnel] with an under other than honorable conditions discharge.  The applicant acknowledged the information on the same date.

7.  On 1 December 1980, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, Fort Carson, CO.  He was charged with one specification of being AWOL from on or about 24 August 1980 to on or about 26 November 1980.

8.  On 2 December 1980, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

9.  In his statement, the applicant stated his girlfriend was hurt at work and at the time pregnant.  He wanted out of the Army to be with his girlfriend all of the time.

10.  On 17 December 1980, the appropriate authority approved the applicant's 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.  He directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to the lowest enlisted grade.

11.  On 19 February 1981 he was discharged accordingly in pay grade E-1.  He was credited with 2 years, 1 month, and 15 days of total active service with
69 days of time lost.

12.  There is no indication he requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.

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

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention that his discharge should be upgraded because he was immature when he entered the Army has been considered.  However, he was    18 years and 7 months of age when he enlisted in the RA.  He served from         4 October 1978 until his first period of unauthorized absence on 29 May 1979.  He was over 19 years old at the time.  There is no evidence that he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

3.  The evidence further shows he was punished twice under Article 15, UCMJ for his two short periods of absence.  He again departed AWOL, he was DFR of his unit, and he subsequently returned to military control.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and he expressed in writing his desire to be discharged from the Army to be with his girlfriend.  He also acknowledged he understood he could be furnished an Under Other Than Honorable Conditions Discharge Certificate as a result of his voluntary discharge.

4.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

6.  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 that 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)                                         AR20100023691



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ABCMR Record of Proceedings (cont)                                         AR20100023691



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