IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100026471 


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 an honorable discharge.

2.  The applicant states he was told at the time that he would be able to upgrade his discharge after 5 years.  He adds that at the time of his enlistment, his recruiter told him he would have to go to jump school in order to be assigned to Fort Bragg, NC.  Prior to shipping out, he received a Red Cross message regarding a family emergency.  His son's mother was seriously ill and there was no one to take care of his son.  He contacted military officials at Fort Benning, GA, and he was told since he had been on active duty for less than 60 days, he could cancel his contract.  He was told he would get his discharge papers but he never did.  Some 8 years later, he was arrested by civil authorities who turned him over to military authorities at Fort Meade, MD.  He was ultimately discharged with an under other than honorable conditions discharge.

3.  The applicant did not provide any 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.  Having had prior enlisted service, the applicant enlisted in the Regular Army on 15 January 1981 for a period of 3 years.  He elected the Airborne Enlistment Option with follow on assignment to the 82nd Airborne Division at Fort Bragg.

3.  On 23 January 1981, he was assigned to Headquarters and Headquarters Company, 4th Student Battalion, Fort Benning, to attend airborne training.  However, he was disenrolled from the course on 3 February 1981 by reason of "Not adaptable to airborne training; lack of motivation."

4.  On 11 February 1981, Headquarters, U.S. Army Infantry Center, Fort Benning, published Orders 042-103 further reassigning him to Fort Campbell, KY, effective 23 February 1981.  However, he failed to report.

5.  On 4 March 1981, his gaining unit reported him in an absent without leave (AWOL) status and on 3 April 1981, he was dropped from the rolls (DFR) of the organization as a deserter.  He was apprehended by civil authorities and he was returned to military control on 13 March 1988.

6.  On 13 March 1988, he was interviewed by his chain of command in an attempt to determine why he went AWOL.  During the interview, the applicant indicated that his wife had become ill and he had to take care of his son.

7.  On 22 March 1988, court-martial charges were preferred against him for one specification of being AWOL from 5 March 1981 to 13 March 1988.

8.  On 23 March 1988, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.

9.  In his request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.

10.  On 30 March and 27 April 1988, his immediate and intermediate commanders recommended approval of the request for discharge with the issuance of an under other than honorable conditions discharge.

11.  On 13 May 1988, the separation 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 a court-martial, and directed the issuance of an under other than honorable conditions discharge.  On 25 May 1988, the applicant was discharged accordingly.

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial, with a characterization of service of under other than honorable conditions.  This form further confirms he completed
4 months and 1 day of net active service this period with 2,565 days of time lost.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 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 3-7a, 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.

16.  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.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  His son's mother's illness at the time is noted.  However, there is no evidence in the available records and he did not provide any substantiating evidence that shows he addressed such issue with his chain of command and/or other available support channels.  There were many other legitimate ways he could have addressed this issue had he chosen to use them.

3.  Based on the applicant's extended AWOL of over 7 years, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  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)                                         AR20100026471



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ABCMR Record of Proceedings (cont)                                         AR20100026471



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