IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110003477 


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 discharge.

2.  The applicant states his unit in Germany did not get his orders showing he was temporarily assigned to Fort Huachuca, AZ, while he was trying to get a hardship discharge.  He wants his discharge changed as he was wrongfully kicked out [of the Army] and had only 5 months to go.

3.  The applicant provides no additional documentation.

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 on 26 August 1975 and he held military occupational specialty 31M (Multichannel Communications Equipment Operator).  He was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  

3.  On 21 April 1977, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 8 to 17 March 1977. 

4.  On 28 December 1977, he was reported AWOL from his assigned unit and on 26 January 1978, he was dropped from the rolls (DFR) of his organization.

5.  A DA Form 3835 (Notice of Unauthorized Absence from U.S. Army), undated, contains the statement "Soldier departed unit on emergency leave due to the death of his mother.  He applied for compassionate reassignment on 6 December 1977 at Fort Huachuca, AZ.  He was relieved from attachment on 27 December 1977 and failed to return to his unit of assignment.

6.  On 8 February 1978, he surrendered to military authorities.

7.  On 14 February 1978, court-martial charges were preferred against him for one specification of being AWOL from 28 December 1977 to 8 February 1978.

8.  On 15 February 1978, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

9.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.



10.  On 22 February 1978, his immediate commander recommended approval of his request for a discharge with the issuance of an under other than honorable conditions discharge.  His commander stated the applicant had stated he joined the Army because he wanted to get away from the civilian environment, he wanted a discharge so he could be home with his family, and he would go AWOL again if he was returned to duty.

11.  On 27 February 1978, his senior commanders recommended approval of his request for a discharge with an Under Other Than Honorable Conditions Discharge Certificate.  

12.  On 3 March 1978, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, Separation Program Designator JFS (for the good of the service, in lieu of trial by court-martial) and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 23 March 1978, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of for the good of the service, in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 2 years, 5 months, and 2 days of creditable active service with 56 days of lost time.

14.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-200, 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.

17.  Army Regulation 635-200, 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 evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he received NJP for being AWOL on one occasion and he was again in an AWOL status for 56 days at the time he was returned to military control.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he 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 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)                                         AR20110003477





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ABCMR Record of Proceedings (cont)                                         AR20110003477



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