BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110004748 


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 that his discharge under other than honorable conditions be upgraded.

2.  The applicant states, in effect, that he was unjustly discharged under other than honorable conditions just prior to completion of his period of service.  He goes on to state that he was given an emergency pass/leave to be go home to Pittsburgh, Pennsylvania during what was deemed to be a complicated pregnancy for his wife.  After 3 days he requested additional leave and he was denied an extension.  He goes on to state that he was reported as being absent without leave (AWOL) when he failed to return.  He believed his wife and child were at risk and required his presence.  He continues by stating up until this time his service was exemplary and he had an unblemished record.  However, his family appeared most important at the time and he made a logical decision.  But now his decision is affecting his Department of Veterans Affairs (VA) benefits.

3.  The applicant provides no additional documents with his application.

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 in Pittsburgh, Pennsylvania on 12 October 1978 for a period of 4 years, training as an infantryman and a cash enlistment bonus.  He completed basic training at Fort Knox, Kentucky and his advanced individual training at Fort Benning, Georgia before being transferred to Germany on 3 February 1979.  He was advanced to pay grade E-4 on
22 January 1981.

3.  He departed Germany on 27 January 1981 and was transferred to Fort Riley, Kansas.  He was promoted to the rank of sergeant on 5 November 1981.

4.  On 26 August 1982, he was reported as being absent without leave (AWOL) and he remained absent in a desertion status until he was apprehended by civil authorities in Pittsburgh, Pennsylvania on 30 November 1982 for a civil offense.  He was released to military authorities at Fort Meade, Maryland on 8 December 1982 and transferred to Fort Dix, New Jersey on 10 December 1982, where charges were preferred against him for the AWOL offense.

5.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the VA in Pittsburgh on 11 July 1989.  However, his records do contain a duly-authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged on 19 January 1983, under the provisions of Army Regulation 
635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had served 3 years, 11 months, and 24 days of active service and he had 105 days of lost time due to being AWOL.

6.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit 
guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

8.  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.

9.  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 applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his rank at the time and the fact that he remained absent for over 3 months until he was apprehended.  His service simply does not rise to the level of a general or honorable discharge.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

3.  The applicant's voluntary request for a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.




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)                                         AR20110004748



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ABCMR Record of Proceedings (cont)                                         AR20110004748



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