IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110005042 


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, in effect, his under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, he went absent without leave (AWOL) because his unit did not support him when he had family issues. 

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, and 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 13 March 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (combat engineer).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was detained by a civil confinement authority (CCA) during the period 23 March 1988 through 24 March 1988.

4.  The applicant's record contains a DD Form 553 (Deserter/Absentee Wanted by the Armed forces) which shows the applicant went AWOL on 5 April 1988.

5.  The applicant's record contains a DD Form 616 (Report of Return of Absentee) which shows the applicant returned from AWOL on 30 August 1988.

6.  The applicant's discharge packet is not available.  However his DD Form 214 shows he was discharged on 23 September 1988 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, under other than honorable conditions.  He completed 2 years, 2 months, and seven days of creditable active military service with 145 days of lost time due to AWOL and civil confignment.

7.  There is no record in the applicant's service record which shows he sought assistance from his chain of command in relation to his family issues.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

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 request for an upgrade of his discharge under conditions other than honorable to a general under honorable conditions was carefully considered; however, there is insufficient evidence to support his request.

2.  Lacking evidence to the contrary, the applicant's request for separation for the good of the service to avoid trial by courts-martial under the provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

3.  There is no evidence nor has the applicant provided evidence to show he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant's records contain evidence which shows he has lost time for being AWOL for 143 days, and in civil confinement for 2 days.  Based on his record of indiscipline, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general under honorable conditions 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)                                         AR20110005042



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ABCMR Record of Proceedings (cont)                                         AR20110005042



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