IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100029771 


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, in effect, his discharge under other than honorable conditions (UOTHC) be upgraded.  He also requests correction of his length of service on active duty.

2.  He states his record is in error based on the lack of military information.

3.  He provides no additional evidence.

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 U.S. Army Reserve on 10 April 1979.  His service record contains documents which show he was ordered to active duty for training on 17 April 1979, such as:
* DD Form 1966 (Application for Enlistment – Armed Forces of the United States)
* Enlistment/Travel Order Number 72-25, dated 10 April 1979
* DA Form 2-1 (Personnel Qualification Record – Part II)

3.  His disciplinary history includes acceptance of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on two occasions for stealing a private's radio valued at approximately $20.00 and for failing to go at the time prescribed to his appointed place of duty.

4.  After failing to report for training, he was involuntarily ordered to active duty on 1 August 1979; however, he failed to report to his post.  As a result, he was reported as absent without leave (AWOL) effective 1 August 1979 and subsequently dropped from the rolls of his unit.  On 28 December 1979, he was apprehended by civil authorities and returned to military control.

5.  On 25 January 1980, charges were preferred against him for being AWOL from 1 August to 28 December 1979.

6.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge were issued.  He did not submit statements in his own behalf.

7.  The separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, with a UOTHC discharge.

8.  On 25 February 1980, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UOTHC discharge.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 12a (Date Entered Active Duty This Period) – he entered active duty on 1 August 1979
* item 12b (Separation Date This Period) – he was discharged on 25 February 1980
* item 12c (Net Active Service This Period) – he completed 1 month and 2 days of active service
* item 29 (Dates of Time Lost During This Period) – lost time from 31 July [sic] to 29 August 1979 and 30 August to 27 December 1979 (148 days)

10.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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 UOTHC discharge 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 applicant's voluntary 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 administratively correct and in conformance with applicable regulations.  The evidence of record does not indicate the request was made under coercion or duress.

2.  His service record shows he received two Article 15's and was AWOL for 148 days.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

3.  The evidence of record shows he was ordered to active duty for training on 17 April 1979 and was discharged on 25 February 1980, which equates to 10 months and 9 days.  However, his DD Form 214 erroneously shows he entered active duty on 1 August 1979, which is the date he departed AWOL, not the date he entered active duty.  Therefore, it would be appropriate to amend his DD Form 214 to show he entered active duty on 17 April 1979.

4.  Based on the correction in paragraph 3, above, his DD Form 214 should also be amended to show he completed 5 months and 12 days total active service this period [10 months and 9 days minus 4 months and 27 days of lost time (AWOL)].

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X_____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the DD Form 214 of the individual concerned be corrected by:

	a.  deleting the entry "79  08  01" from item 12a and replacing it with the entry "79  04  17" and

	b.  deleting the entry "00  01  02" from item 12c and replacing it with the entry "00  05  12."



2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his UOTHC discharge.



      _______ _  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)                                         AR20100029771



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ABCMR Record of Proceedings (cont)                                         AR20100029771



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