IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100027731 


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 a general discharge.

2.  The applicant states:

* He was under the influence of alcohol and drugs at the time of his discharge
* He is not that person anymore who made his company commander so angry and upset
* He made most of his noncommissioned officers and commanders hate him because of his bad behavior and poor judgment
* He has bettered himself through programs and treatment

3.  The applicant provides three Statements of Participation.

 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.  He enlisted in the Regular Army on 13 November 1979 for a period of 3 years.  He completed training and was awarded military occupational specialty 11B (infantryman).

3.  On 7 July 1980, charges were preferred against the applicant for:

* four specifications of being absent without leave (AWOL) from 21 May 1980 to 24 May 1980, 27 May 1980 to 28 May 1980, 30 May 1980 to
11 June 1980, and 20 June 1980 to 2 July 1980
* disobeying a lawful command
* breaking restriction
* larceny

4.  On 11 July 1980, he consulted with counsel and 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 trial by court-martial.  He elected not to submit a statement in his own behalf.

5.  On 25 July 1980, the separation authority approved the applicant's voluntary request for discharge and directed the applicant be furnished an under other than honorable conditions discharge.

6.  On 14 August 1980, he was discharged accordingly under the provisions of Army Regulation 635-200, chapter 10.  He completed 7 months and 19 days of creditable active service with 43 days of time lost.

7.  There is no evidence which shows he was diagnosed with alcohol or drug abuse or dependency prior to his discharge.

8.  He provided three Statement of Participation certificates, dated in 1994 and 1995, that shows he participated in self-esteem group therapy, problem solving and decision making, and alcohol and drug education.

9.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.


10.  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.

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.  He contends he was under the influence of alcohol and drugs at the time of his discharge.  However, there is no evidence of record and he provided no evidence to support this contention that he was diagnosed with alcohol or drug abuse or dependency prior to his discharge.

2.  He is commended for his post-service participation in various programs; however, good post-service conduct alone is normally not a sufficient basis for upgrading a discharge.

3.  His brief record of service contains serious offenses including 43 days of lost time for which court-martial charges were preferred against him.  As such, his record of service was not satisfactory.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge.

4.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  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)                                         AR20100027731



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ABCMR Record of Proceedings (cont)                                         AR20100027731



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