IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100029755 


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 a general or an honorable discharge.

2.  The applicant states he used drugs and alcohol in the military but he was never in trouble except when he was absent without leave (AWOL) because he couldn't get leave to see his father who was dying.  He adds that while on alcohol he lost his wife through divorce.  He states he was awarded custody of his three children and feels he has successfully raised his children and straightened his life.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and four letters of support.

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 Army National Guard on 10 February 1978.  He completed initial entry training and was awarded military occupational specialty 11B (infantryman).  He was involuntarily ordered to active duty in the U.S. Army Reserve on 1 June 1979 and he reenlisted for a period of 5 years on 22 October 1980.  The highest rank/grade he attained was private first class (PFC)/E-3.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) in April 1980 for disobeying a lawful order by consuming alcoholic beverages and in July 1980 for failing to go at the time prescribed to his appointed place of duty.

4.  On 24 August 1981, he was charged for being AWOL during the period 13 July to 23 August 1981.

5.  His record shows additional absences due to confinement by civilian authorities during the period 9-12 July 1981 and two additional periods of AWOL.

6.  On 26 August 1981, he consulted with counsel and he voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged that he understood the elements of the offense(s) charged and that he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood if his discharge request was approved, he would normally be discharged under conditions other than honorable.  He acknowledged he had been advised and understood the possible effect of an under other than honorable conditions discharge, and that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He submitted a statement indicating he had missed ARNG drill due to drinking and he was involuntarily put in the Regular Army.  He stated that while he functioned well at 


first his drinking had gotten way out of control and he could no longer function as a Soldier was supposed to, so he was requesting to be discharged under the provisions of Army Regulation 635-200, chapter 10.

7.  On 25 September 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge.

8.  On 16 October 1981, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 2 years, 6 months, and 17 days of total creditable active service.  This form further shows he had time lost during the periods 31 October through 8 November 1980, 18 through 21 June 1981, and     9 July through 22 August 1981, totaling 58 days.

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

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

11.  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.

12.  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 discharge with a characterization of service 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 received NJP for disobeying a lawful order by consuming alcoholic beverages and for failing to go at the time prescribed to his appointed place of duty.  His record shows he was also confined by civilian authorities and he was AWOL three times for a total of 58 days of time lost.

2.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Based on his misconduct, his service clearly does 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 a general or an honorable discharge.

3.  He contends he was AWOL because his father was dying and he was unable to get leave to visit him.  There is no evidence he sought assistance through his higher headquarters or other local military support agencies.  Further, there is no evidence he properly applied for a compassionate reassignment, hardship discharge, or other assistance related to this alleged matter before deciding to go AWOL.  However, even if he did, it would not form the basis to upgrade his discharge.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100029755



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ABCMR Record of Proceedings (cont)                                         AR20100029755



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