IN THE CASE OF:	  

		BOARD DATE:	    15 September 2011

		DOCKET NUMBER:  AR20110005701 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was home on leave when his wife got sick.  He did not get back [to his unit] on time and was declared absent without leave (AWOL).  He feels this was unjust as he needed to be with his wife.  His wife is now disabled and he cannot receive any benefits.

3.  The applicant provided 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.  Having had prior Army National Guard service, the applicant's records show he was ordered to active duty on 27 September 1973 and he held military occupational specialty 63C (Track Vehicle Mechanic).  He was assigned to Company A, Headquarters Command, Fort Dix, NJ.

3.  He was reported AWOL from his assigned unit as follows:

* 27 September to 24 October 1973
* 16 June 1974 to 2 February 1975
* 6 February 1975 to 22 April 1976

4.  On 23 April 1976, he was apprehended by civilian authorities and returned to military control.

5.  On 29 April 1976, court-martial charges were preferred against him for three specifications of being AWOL from: 

* 27 September to 24 October 1973
* 16 June 1974 to 2 February 1975
* 6 February 1975 to 22 April 1976

6.  On 29 April 1976, 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 discharge or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.

7.  Following consult 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.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

8.  On 3 May 1976, his immediate commander recommended approval of the applicant's request for a discharge with the issuance of an Undesirable Discharge Certificate.  

9.  On 4 May 1976, his senior commander recommended approval of his request for a discharge with the issuance of an Undesirable Discharge Certificate.

10.  On 17 May 1976, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.  On 27 May 1976, the applicant was discharged accordingly.  He completed 8 months and 28 days of creditable active service with 702 days of time lost.

11.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions characterization of service.

12.  There is no evidence in the available records to indicate he requested emergency leave due to a family member's illness.

13.  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.

14.  Army Regulation 635-200, in effect at the time, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was appropriate.

15.  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 of service 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 of service would be clearly inappropriate.

16.  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 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 was AWOL on two separate occasions and he was AWOL again for 443 days before being returned to military control on 23 April 1976.  He was subsequently charged with being AWOL which was the basis for his voluntary discharge.

3.  Based on his 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.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20110005701





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ABCMR Record of Proceedings (cont)                                         AR20110005701



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