IN THE CASE OF:
BOARD DATE: 21 September 2011
DOCKET NUMBER: AR20110002826
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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).
2. The applicant states he served faithfully and meritoriously for over 3 years and received the Good Conduct Medal. His wife was having emotional problems and needed him to come home to Michigan. He tried to get leave, but was denied. In desperation, he went AWOL (absent without leave).
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and letters of recommendation.
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 applicants 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 applicants 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 a Sergeant (SGT/E-5) assigned to Fort Bragg, NC. He was AWOL on 10 February 1982 and again from 12 February 1982 through 12 July 1982.
3. Upon his return to military control, court-martial charges were preferred against the applicant for his AWOL. After consulting with legal counsel on 20 July 1982, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. His request was approved on 6 August 1982.
4. The applicant was discharged UOTHC on 13 September 1982. He had a total of 3 years and 6 months of creditable service and 152 days of lost time due to AWOL.
5. The applicant provides letters from officers in his local chapter of the Disabled American Veterans (DAV) and his employer. All attest to his good character.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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.
7. Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:
a. 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
b. Paragraph 3-7b states that a General Discharge (GD) 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. A characterization of under honorable conditions may be issued only when the reason for the Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant was a noncommissioned officer when he went AWOL for more than 5 months, an offense for which the authorized punishment includes a punitive discharge. As a SGT, he set an extremely poor example for his fellow Soldiers and undermined his unit's discipline and morale.
2. The applicant's request for a chapter 10 discharge, even 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.
3. 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.
4. The applicant's letters of support are acknowledged; however, his post-service conduct is insufficient as a basis for upgrading his discharge. Therefore he is entitled to neither an honorable or 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 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) AR20110002826
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