IN THE CASE OF:	  

		BOARD DATE:	    31 May 2011

		DOCKET NUMBER:  AR20100028558 


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 be upgraded to general under honorable conditions.

2.  The applicant states he received an honorable discharge for his first enlistment but after he reenlisted he went home and did not return on time.  He thinks that the discharge should be upgraded because he did not receive a court- martial.

3.  The applicant provides copies of his two DD Forms 214 (Certificate of Release or Discharge from Active Duty).

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 15 April 1977, completed training in military occupational specialty (MOS) 76D (Stock Control and Accounting Specialist) and was advanced to private first class (E-3) on 1 October 1977.

3.  On 31 July 1978 he reenlisted with a waiver for an 11 day absence without leave (AWOL).

4.  He was AWOL from 15 December 1978 to 31 January 1979 and from 12 February to 24 August 1979.

5.  When charges were preferred for those offenses the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial the by court-martial.

6.  He indicated that he understood the elements of the charges against him and admitted that he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged that he would receive an under other than honorable conditions discharge and that he understood that he would be deprived of many or all Army benefits and that he might be ineligible for veterans benefits administered by the Veterans Administration (VA).  He stated that he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge.  

7.  The applicant also submitted a personal handwritten letter to the effect that he had joined the Army to learn accounting and was not satisfied with his MOS of 76D.  He wanted to leave the Army under chapter 10 because the Army was doing nothing for him in his main interest.

8.  The chain of command recommended approval of the applicant's request and the issuance of a discharge under other than honorable conditions.

9.  The separation authority approved the applicant's request and directed that he be issued a discharge under other than honorable conditions.  On 12 October 1979, the applicant was so separated.  He had a total of 1 year, 9 months, and   4 days of creditable service and 222 days lost time during his second enlistment.

10.  There is no indication that the applicant applied to the Army Discharge Review Board.



11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel:

   a.  Chapter 10 of that regulation 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.

   b.  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.  Considering that the applicant specifically traded the uncertainties of a trial by court-martial for the discharge he received the fact that he was not tried does nothing to justify upgrading the discharge.
 
2.  The applicant had demonstrated the capacity for honorable service during his first enlistment and had even reenlisted in the MOS he found so unsatisfactory.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is clearly commensurate with the applicant's overall record of military service.

4.  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)                                         AR20100028558





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ABCMR Record of Proceedings (cont)                                         AR20100028558



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