IN THE CASE OF:	

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100029780 


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 that his discharge under other than honorable conditions be upgraded to a general or medical discharge.

2.  The applicant states his parents were getting divorced and his mother called him crying and needed him at home.  He goes on to state he had no leave and decided to leave to be with his mother who had nowhere to turn.  He also states he desires to have his discharge upgraded due to family problems and believes his record to be clean other than this incident.  He states he was a good Soldier until his parents divorced.

3.  The applicant provides no additional evidence with 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 in Cleveland, Ohio, on 7 September 1977 for a period of 3 years, training as an armor crewman, and assignment to the 1st Infantry Division at Fort Riley, Kansas.  At the time of his enlistment he indicated he had completed the 9th grade of high school and he listed no siblings.  He also listed no law violations.

3.  He completed one-station unit training at Fort Knox, Kentucky, and was transferred to Fort Riley on 3 February 1978.  He was advanced to pay grade E-4 on 7 December 1978.

4.  The applicant was absent without leave (AWOL) from 29 September to 18 October 1979.  The record is silent as to any punishment imposed for that offense.

5.  He again was AWOL on 26 November 1979 and remained absent until he was returned to military control at Fort Knox on 7 January 1980.  Charges were preferred against him on 10 January 1980 for the AWOL offense.

6.  On 14 January 1980 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement or explanation in his own behalf in which he stated he quit school and joined the Army because he was an alcoholic and was always getting into trouble and he thought the Army could help him.  He went on to state the Army did not help him and he wanted to get out because he was still drinking, his parents had recently divorced, and his mother was having financial problems because they had a big family.

7.  On 6 February 1980, the appropriate authority (a brigadier general) approved his request for discharge and directed that he be discharged under other than honorable conditions.

8.  Accordingly, he was discharged under other than honorable conditions on 7 March 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 2 years and 4 months of total active service and had 62 days of lost time due to AWOL.

9.  There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  There is also no evidence to show he sought the assistance of his chain of command to resolve his problems after his first period of AWOL.  Additionally, there is no evidence of any alcohol-related incidents recorded in his records.

10.  Army Regulation 635-200 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant contends he was a good Soldier until his parents divorced.  His record contains no evidence of any medical conditions relating to the effect of his parents' divorce which would have rendered him unfit for duty under the provisions of Army Regulation 635-40.  Therefore, he is not entitled to separation for medical reasons.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20100029780



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ABCMR Record of Proceedings (cont)                                         AR20100029780



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