IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110002837


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states "I would have given my life."

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 served in the Regular Army from 13 June 1977 to 28 March 1980.  During that time, he was absent without leave (AWOL) on the following occasions:

* 19790421-19790426	Total of 006 days
* 19790605-19790628	Total of 024 days
* 19790705-19790708	Total of 004 days
* 19790716-19790719	Total of 004 days
* 19790727-19790802	Total of 007 days
* 19790804-19800121	Total of 171 days

3.  The applicant's records show he was offered and accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for the first period of AWOL (21-26 April 1979), for which he received a forfeiture of $109 pay for 1 month, 14 days of extra duty, and a reduction from private first class (PFC/E-3) to private (PV2/E-2) which was suspended.  The suspended reduction was vacated on 9 July 1979 as a result of his second period of AWOL.

4.  Following the applicant's last period of AWOL which commenced on 4 August 1979, his commander drew up court-martial charges against him with preferral of the charges pending his return to military control.

5.  The applicant’s records do not contain a copy of his administrative discharge packet.  However, his records do contain a properly constituted DD Form 214 which identifies the reason for discharge and the characterization of his service.  The evidence shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel and voluntarily, in writing, request separation from the Army in lieu of trial by court-martial.

6.  On 28 March 1980, the applicant was separated with a UOTHC discharge.  He had 2 years, 2 months, and 14 days of creditable service, and he had 216 days of lost time due to being AWOL.

7.  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 HD or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

8.  Army Regulation 635-200 provides guidance on the characterization of service and states:

	a.  Paragraph 3-7a states that an 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.

	b.  Paragraph 3-7b states that a 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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge.  Unfortunately, the applicant became a habitual AWOL offender and amassed 216 days of lost time.

2.  The applicant's chain of command tried to correct his behavior by means of NJP without success.  While under a suspended reduction for a 6-day AWOL offense, he went AWOL for 24 days; the suspension was vacated and the reduction was ordered executed.  Therefore, corrective action was unsuccessful in changing the applicant's behavior.

3.  Although his administrative discharge packet is not available, it is presumed his 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 request for a chapter 10 discharge 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)                                         AR20110002837



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ABCMR Record of Proceedings (cont)                                         AR20110002837



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