BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100030049


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 a discharge upgrade.

2.  The applicant states his son was born on 6 July 1979 and his 15-year old wife was having trouble taking care of him.  He used up all of his leave, so he went absent without leave (AWOL) to support the mother and help take care of his son.  If he had it to do over again, he would do something different.

3.  The applicant provides:

* a personal statement
* letters of support from The Salvation Army's Harbor Light Drug Treatment program

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 was born on 13 August 1959 and enlisted in the Regular Army for 3 years on 17 January 1978; his enlistment agreement shows he was unmarried and had no children.  

3.  The applicant was trained as a unit supply specialist, military occupational specialty 76Y (Unit Supply Sergeant).  His first permanent duty station was Fort Polk, LA.

4.  The applicant's record shows he was AWOL on the following dates:

* 22-26 November 1978				005 days
* 25-28 May 1979						004 days
* 02-15 July 1979						014 days
* 26 July 1979-6 February 1980	 	196 days

5.  After being AWOL 196 days the applicant returned to military control at the Personnel Control Facility (PCF), Fort Bragg, NC.  Special court-martial (SPCM) charges were preferred against him on 27 February 1980.

6.  The applicant's administrative discharge packet shows he consulted with legal counsel on 27 February 1980 and requested discharge for the good of the service in lieu of trial by court-martial under chapter 10, Army Regulation 
635-200.  The discharge packet contains a 28 February 1980 memorandum signed by his commander which states:

	a.  The applicant was personally interviewed on 28 February 1980.  He acknowledged having been advised of the consequences of a request for discharge for the good of the service in lieu of trial by court-martial, and of the consequences of an under other than honorable conditions discharge.

	b.  The applicant said family problems led to his lengthy period of AWOL.  His wife had problems after giving birth and he needed to be with her.  Once he went AWOL, he decided to stay at home and help his wife.  When his commander asked how his wife was doing as of 28 February 1980, the applicant said he had no idea as they divorced approximately 6 months earlier.  He added he had no desire to serve and only returned to military control because he knew the authorities were after him.


7.  On 20 March 1980, the approving authority approved the applicant's request for discharge under chapter 10, Army Regulation 635-200.  On 31 March 1980, he was given an under other than honorable conditions discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 1 year, 7 months, and 6 days of active service and 219 days of lost time due to being AWOL.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 3 December 1990, denied his request.

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

   a.  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.

	b.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	c.  Paragraph 3-7b states 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade.

2.  The applicant had 3 periods of AWOL totaling 23 days and one lengthy period totaling 196 days.  He alleges he went home to help his wife take care of their son.  His records do not indicate he was married; however, even if he had been married, on 28 February 1980, he told his commander that he had been divorced 6 months – at the beginning of his lengthy period of AWOL – and he had no idea how his ex-wife was doing.  Therefore, he did not spend this time caring for his wife and son.

3.  The applicant's period of AWOL was unacceptable conduct.  If he had family problems there were resources available through his chain of command, or his command's chaplain to assist him.  There is no indication he ever sought any help with his problems.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

5.  His request for a chapter 10 discharge after appropriate and proper consultation with a military lawyer tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. 

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)                                         AR20100030049



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100030049



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1