IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100026776 


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 an upgrade of his under other than honorable conditions discharge.

2.  He states he was in a coma 3 months prior to his enlistment in the Army and he had not fully recovered.  He adds that he has physical and mental defects that will not allow him to maintain employment.  

3.  He 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 record shows he enlisted in the Regular Army on 9 April 1979.

3.  On 23 October 1979, charges were preferred against him for being absent without leave (AWOL).  Although the complete form is not contained in his records, his separation packet shows he was AWOL from 3 July 1979 to
23 September 1979.

4.  The applicant consulted with counsel and he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service in lieu court-martial, due to unacceptable conduct.

5.  In requesting a chapter 10 discharge, he would have acknowledged he was making the request of his own free will, that he was afforded the opportunity to consult with counsel, that he understood he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He elected to submit a statement in his behalf.

6.  In his statement he indicated that he was depressed when he went AWOL.  He stated that he had trouble adjusting to the military and being separated from the things he did before he entered the military.  He stated that he had gotten himself together and he wanted a chance to prove himself.  He believed he was in the right place because he was a Soldier and he had nothing to look forward to at home.

7.  On an unspecified date, the appropriate authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 16 November 1979, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows was issued an under other than honorable conditions discharge.  He completed 4 months and 18 days of active service and he had lost time from 3 July to 2 October 1979 
(90 days).

9.  On 24 November 1979, he appealed to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 16 March 1982, the ADRB denied his request for a discharge upgrade stating the board determined that he was properly and equitably discharged.


10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge was normally considered appropriate.

11.  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.

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 available evidence shows the applicant was charged with being AWOL 90 days and he voluntarily requested separation under the provisions of chapter 10, Army Regulation 635-200 for the good of the service to avoid trial by court-martial.  The evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory; therefore, he is not entitled to an honorable or a general discharge.



3.  It is unfortunate that the applicant has medical issues that affect his employment.  However, the evidence does not show he was suffering from any physical or mental conditions at the time of discharge.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant an upgrade.

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)                                         AR20100026776



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ABCMR Record of Proceedings (cont)                                         AR20100026776



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