IN THE CASE OF:
BOARD DATE: 19 May 2011
DOCKET NUMBER: AR20100027236
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.
2. The applicant states, in effect, in the latter part of 1981/1982 a warrant officer in his unit coordinated with his wife to have him arrested for non-support. He spent 15 days in the Halifax County Jail in North Carolina. The Army did not know where he was. He went to court and was ordered to pay $1,000 in 3 days or be sent to prison for 3-5 years. The Army would not help him so he went absent without leave (AWOL). He later turned himself in and was discharged. He would like the discharge upgraded to general under honorable conditions.
3. The applicant provides, in support of his application, a letter from Tarrant County Mental Health that certifies he has been residing in the Liberty House since 21 June 2010 and he is expected to continue to live there until 21 June 2012. He also provides a list of his prescription medications.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 4 September 1979, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 43E (Parachute Rigger) and he was assigned to Fort Bragg, NC.
3. He was AWOL from 27 August 1980 to 14 April 1982.
4. On 27 April 1982, the applicant's company commander notified him that he was intending to take action to effect his discharge for misconduct.
5. The applicant consulted with counsel concerning his rights. He elected not to make a statement in his own behalf.
6. On 18 May 1982, the applicants commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to being AWOL from 27 August 1980 to 15 April 1982.
7. The company commander stated that due to the nature of the applicant's continued misconduct retention in the service would not be in the best interest of the military.
8. On 25 May 1982, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued an Under Other than Honorable Conditions Discharge Certificate.
9. Accordingly, on 28 June 1982, the applicant was discharged under other than honorable conditions. He had completed 1 year, 1 month, and 20 days of creditable active service.
10. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include a pattern of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.
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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The available record shows the applicant was AWOL from 27 August 1980 to 15 April 1982.
2. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
3. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
4. In view of the foregoing, there is no basis for granting the applicant's 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 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) AR20100007379
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ABCMR Record of Proceedings (cont) AR20100027236
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