IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100028608 


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

2.  The applicant states he was experiencing marital problems at the time and as a result he was absent without leave (AWOL).

	a.  He was apprehended and offered a deal of 30 days in the correctional custody facility and reassignment to Germany.  He declined the offer and opted to submit a voluntary request for discharge.

	b.  He was only 19 years of age at the time and lacked maturity.  He regrets the decision he made and if he were given the opportunity he would return to active duty to make things right.

3.  The applicant provides no additional evidence in support of his application.

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 for a period of 3 years on 27 May 1980.  At the time, he was 18 years of age.

3.  Upon completion of training he was awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic).  He was then reassigned to Battery A, 2nd Battalion, 37th Field Artillery, Fort Knox, KY.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) that he was AWOL from:

* 7 through 14 October 1980
* 4 through 6 November 1980
* 8 November 1980 through 1 April 1981

5.  Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center, Fort Knox, KY, Orders 74-6, dated 17 April 1981, show the applicant was apprehended by civilian authorities on 2 April 1981 in Counce, TN; assigned to the Special Processing Company effective 2 April 1981; and joined the unit at Fort Knox on 14 April 1981.

6.  On 15 April 1981, the applicant's company commander preferred court-martial charges against him for violation of Article 86, Uniform Code of Military Justice (UCMJ), for absenting himself from his organization from 8 November 1980 to 2 April 1981.

7.  On 15 April 1981, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  He acknowledged he was guilty of the charge against him or of a lesser-included offense contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He was advised he might be discharged under other than honorable conditions, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were issued an Under Other Than Honorable Conditions Discharge Certificate.

	b.  He was advised he could submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant submitted a statement with his request, dated 16 April 1981, in which he stated, "I am 19 years old and went through the 9th grade.  I joined the Army mainly to learn a skill.  I requested mechanics as an MOS.  The reason I want out is, I still have problems at home, and really dislike military life.  And I believe it would be the best thing for the Service and myself."  It also shows the applicant placed his signature on the statement.

8.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

9.  On 4 May 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to private/E-1.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial on 3 June 1981 in accordance with Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He completed 7 months and 2 days of net active service during this period and he had 156 days of lost time.

11.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who 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.  Chapter 3, paragraph 3-7b, provides that a general discharge under honorable conditions 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 contends his discharge under other than honorable conditions should be upgraded to a general discharge under honorable conditions because he was only 19 years of age at the time, experiencing marital problems, lacked maturity, and now regrets the decision he made.

2.  Considering the applicant satisfactorily completed training and was awarded MOS 63C, his contention that he was young and immature is not supported by the evidence of record.  In addition, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was voluntary and administratively correct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record.  Considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  The evidence of record shows the applicant was AWOL for total of 156 days (more than 5 months).  In addition, he completed only about 7 months of his 
3-year enlistment obligation.  Thus, the evidence of record shows the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  In view of all of the foregoing, there is no basis for granting the 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 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)                                         AR20100028608



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ABCMR Record of Proceedings (cont)                                         AR20100028608



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