IN THE CASE OF:	  

		BOARD DATE:	 26 May 2011 

		DOCKET NUMBER:  AR20100028237 


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 to an honorable discharge.

2.  The applicant states the current character of service prevents him from receiving any benefits.  He adds that prior to his discharge he was going through a period of depression due to the illness of his parents.  He was also helping his family financially as much as he could.

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.  The applicant enlisted in the Regular Army on 19 October 1976 for a period of 3 years.  He held military occupational specialty 31M (Multichannel Communication Equipment Operator).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

3.  He was assigned to Fort Sill, OK.  He was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  His record reveals a history of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 18 October 1977, for being absent without leave (AWOL) from
12 to 14 September 1977
* on 14 November 1977, for failing to go at the time prescribed to his appointed place of duty on two occasions
* on 16 November 1977, for being AWOL from 5 to 7 November 1977
* on 12 June 1978, for failing to be at his appointed place of duty
* on 20 September 1978, for failing to go at the time prescribed to his appointed place of duty

5.  On 28 September 1978, he departed his unit in an AWOL status and on 27 October 1978, he was dropped from the rolls of the Army as a deserter.  He returned to military control on 9 April 1979.

6.  Subsequent to his return, court-martial charges were preferred against him for one specification of being AWOL from 28 September 1978 to 9 April 1979.

7.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 14 May 1979 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, with a character of service of under other than honorable conditions.  He completed a total of 2 years and 8 days of creditable active service with 200 days of time lost.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

9.  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, an under other than honorable conditions discharge is normally considered appropriate.

10.  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.

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 under other than honorable conditions discharge be upgraded was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant’s record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 14 May 1979 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.  He has provided no information 

that would indicate the contrary.  

4.  The available evidence shows a military career marred with misconduct that included multiple instances of NJP and AWOL.  As a result, his overall record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either an honorable or a general discharge.  Therefore, he is not entitled to the relief requested.

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)                                         AR20100028237



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ABCMR Record of Proceedings (cont)                                         AR20100028237



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