IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110001826 


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 discharge under other than honorable conditions (UOTHC).

2.  He states he would like his discharge upgraded because:

* it was 33 years ago and he was just a kid
* he was absent without leave (AWOL) because his mother was sick and he wanted to see her before she died
* he was young and he didn't think
* he didn't make sound judgments on the proper procedures for emergency medical or other authorized methods to visit his sick mother due to the mental stress of his mother's illness, complicated by the holidays
* he has regretted his discharge for 33 years and now that he's getting older he would like to have it upgraded

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 21 January 1956 and he enlisted in the Army National Guard on 21 January 1973 at 17 years of age.  He was discharged on 17 October 1976.  On the following day, he was ordered to involuntary active duty for a period of 18 months and 12 days.

3.  His service record contains 10 DA Forms 4187 (Personnel Action) which show he was AWOL on four separate occasions from 6 to 12 December 1977, 19 December 1977 to 16 January 1978, 29 January to 1 February 1978, and 16 February to 5 June 1978.

4.  His disciplinary history includes acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on two occasions for failing to go to his appointed place of duty and for being absent from his unit for less than 24 hours.

5.  The applicant's discharge packet is not available for review.  His service record contains a DA Form 2496 (Disposition Form) from a staff judge advocate, dated 28 June 1978, requesting action on the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  The staff judge advocate indicated the applicant's past record was poor, his current attitude was negative, and his prospects for successful rehabilitation were poor.  This document indicated the Headquarters Command and Personnel Control Facility commanders and the staff judge advocate had recommended approval and issuance of a UOTHC discharge.

6.  His DD Form 214 shows he was discharged UOTHC for the good of the service in lieu of trial by court-martial on 13 July 1978 under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year and 5 months of net active service during this period.  His DD Form 214 also shows he had 149 days of lost time.

7.  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.

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

	a.  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.  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.

	b.  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.

	c.  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 statements regarding his personal family problems were acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  He contends that it was 33 years ago and he was just a kid, but the evidence of record shows he committed his offenses at 21 and 22 years of age.  Discharges are not upgraded based on the passage of time.  Each case is considered based on its own merits.  Although he contends he was young at the time, his age is not sufficiently mitigating to warrant relief in this case.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the charges and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  Therefore, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.  The applicant is not entitled to an honorable or 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 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)                                         AR20110001826



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ABCMR Record of Proceedings (cont)                                         AR20110001826



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