BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100025388 


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 under other than honorable conditions discharge be upgraded to general under honorable conditions.

2.  The applicant states he went on leave and did not return because of his mother's death.  He could not control his emotions and would not have been any good to the service.  He went back to prison and had alcohol problems.

3.  The applicant provides no 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 enlisted in the Regular Army on 3 October 1978.  Upon completion of initial entry training he was awarded military occupational specialty 13B (Cannon Crewman).

3.  He accepted nonjudicial punishment on 4 April 1979 for being derelict in the performance of his duties by willfully failing to turn in his weapon.

4.  A DA Form 4187 (Personnel Action), dated 25 July 1979, shows he was absent without leave (AWOL) on 24 July 1979.

5.  A second DA Form 4187, dated 7 December 1981, shows he was apprehended by civilian authorities on 15 November 1981 for public intoxication and resisting arrest.  This DA Form 4187 further shows he was placed in civilian confinement on 16 November 1981 and returned to military control on 29 November 1981.

6.  On 4 December 1981, court-martial charges were preferred against him for the AWOL offense.

7.  On 7 December 1981, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

8.  He acknowledged in his request he understood that he could be issued an under other than honorable conditions discharge, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

9.  On 22 December 1981, the separation authority approved his request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.  On 26 January 1982, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he accrued 859 days of lost time.

10.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 29 July 1985.

11.  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.  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.

12.  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 requests that his under other than honorable conditions discharge be upgraded to general under honorable conditions.

2.  He contends he was AWOL because of the death of his mother.  However, he provides no evidence to support his claim.

3.  The evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

4.  His voluntary request for discharge 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.  There is no indication the request was made under coercion or duress.

5.  His record of indiscipline includes nonjudicial punishment and 859 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100025388



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ABCMR Record of Proceedings (cont)                                         AR20100025388



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