BOARD DATE: 4 May 2011
DOCKET NUMBER: AR20100025327
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 his dishonorable discharge [sic] be upgraded.
2. The applicant states that after being absent in desertion for 1 year and 2 months, he was given a choice to remain in the service without pay for 1 year and 2 months or accept a dishonorable discharge and get on with his life. He made the wrong choice.
3. The applicant does not provide any additional evidence.
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 military records show he enlisted in the Regular Army on 9 November 1976 and was awarded the military occupational specialty of tactical wire operations specialist.
3. He accepted nonjudicial punishment (NJP) on 24 February 1978 for being absent without leave (AWOL) from 23 January to 1 February 1978.
4. He again accepted NJP on 24 July 1978 for failure to obey a lawful order and being AWOL from 4 June to 3 July 1978.
5. On 30 September 1980, court-martial charges were preferred against the applicant for being AWOL from 17 January 1979 to 15 September 1980, a period of 608 days.
6. On 30 September 1980, the applicant requested discharge in lieu of trial by court-martial.
7. The request was approved by the appropriate authority. Accordingly, on 3 November 1980 he was given a discharge under other than honorable conditions (UOTHC) for conduct triable by court-martial.
8. On 7 March 1984, the Army Discharge Review Board notified the applicant that it had denied his request to upgrade his discharge.
9. Army Regulation 635-200 (Enlisted Separations) 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. 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 UOTHC is normally considered appropriate.
10. 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.
11. 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 accepted NJP for two periods of AWOL and failure to obey a lawful order and had further been AWOL for 608 days before he was apprehended. Such repeated, serious misconduct certainly warranted a UOTHC discharge.
2. While it is unfortunate that the applicant now believes he made the wrong decision, that belief does not constitute grounds to grant his request.
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) AR20100025327
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ABCMR Record of Proceedings (cont) AR20100025327
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