BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100027740 


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

2.  He states he was very young and homeless at the time he entered the military.  He also states it was a great experience and he wishes he was more mature at the time and that he had stayed in and made a career of the Army.  He adds that the nature of his discharge has been a long-time embarrassment and contends an upgraded discharge would help him obtain employment with his local city or county government.

3.  He 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's record shows he was born on 31 January 1961.  He enlisted in the Regular Army on 14 May 1979 at the age of 18 years, 3 months, and 15 days.  Upon completion of initial entry training he was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/pay grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his discharge he held the rank/pay grade of private (PV1)/E-1.

3.  His record contains a DD Form 458 (Charge Sheet), dated 10 December 1980, which shows he was charged with one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from his unit from 5 August to 28 December [sic November] 1980, a period of 115 days.

4.  On 10 December 1980, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were 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 laws.

5.  He submitted a written statement wherein he indicated he did not wish to perform any further military service.  He had attempted to conform to the military, but was unsuccessful and desired to get out before he got into any further trouble.

6.  His chain of command recommended approval of his request and recommended that he be issued an under other than honorable conditions discharge.

7.  On 3 February 1981, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade and issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).



8.  On 12 February 1981, he was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued a DD Form 794A.  His service was characterized as "under other than honorable conditions."  He completed 1 year, 5 months, and 6 days of creditable active military service.

9.  On 16 February 1982, the Army Discharge Review Board informed him that the board reviewed his case and determined he was properly and equitably discharged and that his request for a change in the character and/or reason of his discharge was denied.

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 at any time after the charges have been preferred.

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.  The applicant's request that his discharge under other than honorable conditions be upgraded to a general discharge was carefully considered and determined to be without merit.

2.  He contends his misconduct was the result of his young age and immaturity.  His record shows he was over 18 years of age at the time of his enlistment and nearly 20 years of age at the time of his offenses.  There is no evidence indicating that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction. 


4.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

5.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge.

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)                                         AR20100027740





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ABCMR Record of Proceedings (cont)                                         AR20100027740



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