IN THE CASE OF:	  

		BOARD DATE:	    30 August 2011

		DOCKET NUMBER:  AR20110003745 


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 to a general discharge under honorable conditions.

2.  The applicant states he went absent without leave (AWOL) because his brother was murdered in Korea while serving in the Army.  He is homeless and an upgrade to his discharge would allow him to use the Department of Veterans Affairs (VA) Hospital system.

3.  The applicant 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 enlisted in the Regular Army on 25 September 1979.  He completed his initial training and was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).

3.  On 4 March 1981, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, being AWOL from on or about:

* 20 October to 9 December 1980
* 20 December 1980 to 23 February 1981

4.  He consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

5.  On 4 March 1981, subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an under other than honorable conditions discharge which would deprive him of many or all benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He elected not to submit a statement in his behalf.

6.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many state benefits and that a discharge under other than honorable conditions was not easily upgraded. 

7.  A DA Form 2496 (Disposition Form), dated 18 June 1981, Subject:  Request for Discharge for the Good of the Service, indicates the applicant went AWOL because of family problems and because the Army lied to him about getting him an education.  Being fully aware of the requirements for application and approval for a hardship discharge or compassionate reassignment, the applicant declined the opportunity.

8.  On 21 July 1981, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.

9.  On 6 August 1981, he was discharged accordingly.  He completed 1 year, 5 months, and 16 days of creditable active military service and accrued a total of 145 days of lost time due to being AWOL.

10.  On 12 November 1982, the Army Discharge Review Board denied his request to upgrade his discharge. 

11.  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 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.

12.  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 confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

2.  His record of good service was greatly diminished by the 145 days he spent AWOL.  Further, he was counseled regarding alternatives he could have used to resolve his family problems, but he still elected to be discharged.



3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110003745



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ABCMR Record of Proceedings (cont)                                         AR20110003745



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