IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110002382 


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, an upgrade of his discharge under other than honorable conditions (UOTHC) to an honorable discharge.

2.  He states his grandfather died and it was a very hard time for his father.  He felt it was his duty to stay with his father during this time.

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's records show he enlisted in the Regular Army in pay 
grade E-1 on 3 January 1977.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).  He was advanced to pay grade E-3 on 7 November 1977.

3.  He was reported absent without leave (AWOL) on 24 March 1979 and dropped from the rolls of his organization on 23 April 1979.  He was apprehended by civilian authorities and returned to military control on 15 October 1979.

4.  On 10 October 1979, a DD Form 458 (Charge Sheet) was prepared by the Commander, Personnel Control Facility, U.S. Army Field Artillery Center.  The applicant was charged with one specification of being AWOL from 24 March through 15 October 1979.

5.  On 30 October 1979 after consulting with counsel, he 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 acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 19 November 1979, the applicant's unit commander recommended approval of the applicant's request for discharge with the issuance of a UOTHC Discharge Certificate.  The unit commander stated the applicant had been unable to adjust to military life and rehabilitation efforts were considered futile.

7.  On 28 November 1979, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of a UOTHC Discharge Certificate and reduction to pay grade E-1.

8.  He was discharged UOTHC for the good of the service in lieu of trial by court-martial in pay grade E-1 on 5 December 1979.  He was credited with completion of 2 years, 4 months, and 8 days of net active service and lost time from 24 March to 14 October 1979.

9.  There is no evidence 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 separation of enlisted personnel.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred.  A UOTHC discharge was normally considered appropriate.  The separation authority could direct an honorable or general discharge if such a discharge was merited by the Soldier's overall record.

11.  Army Regulation 635-200, paragraph 3-7a, states 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, states 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 contentions have been noted; however, the evidence of record shows he was charged with one specification of AWOL from 24 March through 15 October 1979.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he understood he could be furnished a UOTHC Discharge Certificate.  His unit commander stated the applicant had been unable to adjust to military life.

2.  He submitted no evidence to show he had any personal problems and his chain of command failed to help him resolve them.  There were many alternate remedies he could have used if he did have personal problems, but he chose not to do so.  He also provided no evidence or a convincing argument to show his discharge should be upgraded.  His military records contain no evidence which would entitle him to an upgrade of his discharge to general under honorable conditions or fully honorable.  Therefore, in the absence of evidence to the contrary, government regularity is presumed in the discharge process.

3.  In view of the foregoing, there is no basis for granting his request.


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)                                         AR20110002382



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ABCMR Record of Proceedings (cont)                                         AR20110002382



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