IN THE CASE OF:	  

		BOARD DATE:	    7 June 2011

		DOCKET NUMBER:  AR20100028664 


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 other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he would like to remove the other than honorable discharge from his record due to life changes.  He joined the Army in 1979 to follow in his father's footsteps.  At age 18, he got married and he was sent to Fort Hood, TX for 18 months.  His father had a heart attack and his wife got pregnant by another man.  He requested leave to go see his father and handle the situation with his wife.  His father needed surgery and his wife left him.  While on leave he spoke with his commander but he did not seem to care.  He went to Fort Benning, GA and turned himself in because he had been placed in an absent without leave (AWOL) status.  He was transferred to Fort Bragg, NC where he was discharged.  He told the military lawyer he wanted to get out of the Army and he was advised that he could return to military service with a waiver.  He divorced his wife and began to reconstruct his life.  He now gives back to the community by volunteering, he has obtained a master's degree, and he is working towards a second master's degree.

3.  The applicant provides:

* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three letters of recommendation for employment
* A South University Unofficial Transcript computer printout


* A certificate of training
* A Troy University Bachelor of Science Degree diploma

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 26 June 1979.  He completed training and he was awarded military occupational specialty 19D (Cavalry Scout).  He was assigned to the 1st Battalion, 41st Infantry, Fort Hood.

3.  He was reported AWOL from his assigned unit on 21 March 1980.  He was returned to duty on 3 April 1980 and he was again reported AWOL on 9 April 1980.  He was dropped from the rolls of his organization on 9 May 1980.

4.  He returned to military control on 14 August 1980.

5.  On 19 August 1980, court-martial charges were preferred against him for one specification of being AWOL from his assigned unit from 9 April to 14 August 1980.

6.  On 20 August 1980, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, 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.


7.  In his request for discharge, he acknowledged he understood by requesting discharge if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

8.  On 25 August 1980, his immediate commander recommended approval of his discharge with the issuance of an Under Other Than Conditions Discharge Certificate.  The commander stated he personally interviewed the applicant and the applicant desired elimination from the Army under Army Regulation 635-200, chapter 10, under less than honorable conditions.  The commander further stated the applicant stated his 127 days of AWOL were caused by family problems as his father became ill, he began to have marital problems, and he went AWOL to be with his father and resolve his marital problems.  The applicant stated he had surrendered to military authorities only to clear his record and continue his civilian life.  He had no desire to stay in the Army and he stated he would go AWOL again to be with his family if necessary.

9.  On 22 September 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to private (PV1)/E-1 and issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 30 September 1980, he was accordingly discharged.  The DD Form 214 he was issued shows he completed a total of 10 months and 18 days of creditable active service with 140 days of time lost.

10.  On 19 March 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he had been properly discharged. 

11.  Army Regulation 635-200, in effect at the time, 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.

12.  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.

13.  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 evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

2.  His record of service shows he went AWOL on two different occasions.  During his second offense, he had been AWOL for 127 days when he returned to military control on 14 August 1980.  He was subsequently charged with being AWOL which was the basis for his voluntary discharge.

3.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he was AWOL for 140 days during his military service.

5.  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)                                         AR20100028664



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ABCMR Record of Proceedings (cont)                                         AR20100028664



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