IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029046 


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 upgrade of his under other than honorable conditions discharge to an honorable or a general discharge.

2.  The applicant states he was discharged because of a grave mistake.  He moved from Massachusetts to New York and he put in all of the paperwork to transfer his Reserve unit.  For a long time he did not hear anything about his transfer.  Then he was stopped for speeding.  When the officer checked his driver's license, he was identified as being absent without leave (AWOL).  He was sent to Fort Dix, NJ.  He was given little legal help and he had problems reading and understanding English.  He was pressured into signing the forms.  Had he known they were for less than an honorable discharge, he would not have signed them.
 
3.  The applicant provides no additional documentation.

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.  On 7 June 1976, the applicant, at 22 years of age with only 5 years of elementary education, enlisted in the Massachusetts Army National Guard (MAARNG).  He completed his initial training at Fort Sill, OK, and he was awarded military occupational specialty 13B (Cannoneer).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows in:

	a.  Item 35 (Record of Assignments) he was involuntarily ordered to active duty on 14 May 1978, and

	b.  Item 21 (Time Lost) he was AWOL from 16 May through 24 November 1978.

4.  On 30 November 1978, charges were preferred against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period 16 May to 25 November 1978 (a period of 193 days).

5.  On 4 December 1978, the applicant consulted with legal counsel and he 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  He was further advised that should he receive an under other than honorable conditions discharge, he would be deprived of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life for such a discharge.  Subsequent to receiving this legal counsel, the applicant voluntarily 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.

6.  In his request for discharge, the applicant acknowledged that he was making his request of his own free will and that he had not been subjected to any coercion whatsoever by any person.  He indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a 


lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 23 January 1979, the separation authority approved the applicant’s request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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, a discharge under other than honorable conditions 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 contends that his discharge should be upgraded to honorable or general because he was given little legal help, he had problems reading and understanding English, and he was pressured into signing the forms.

2.  The applicant was 22 years of age at the time of his initial enlistment.  He successfully completed basic combat and advanced individual training and he was awarded MOS 13B.  This indicates that his language abilities were reasonably sufficient.  Furthermore, he consulted with legal counsel prior to requesting discharge in lieu of trial court-martial.  There is no evidence of coercion or pressure to sign his voluntary discharge request forms.

3.  The evidence of record indicates that the applicant was involuntarily ordered to active duty from his MAARNG unit, but he failed to report for that duty.  He was subsequently apprehended and returned to the control of the U.S. Army after being AWOL for 193 days.  He has provided no evidence to corroborate his contention that he tried to transfer his Reserve unit.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  Based on the length of his AWOL, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to either an honorable for a general 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)                                         AR20100029046



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ABCMR Record of Proceedings (cont)                                         AR20100029046



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