IN THE CASE OF:	  

		BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110005819 


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 an honorable discharge.

2.  The applicant states the record is correct.  He already had an alcohol problem prior to entering the military although he did not know it at the time.  He adds that he believes his discharge should be upgraded due to the fact that he overcame his problems and he has been a productive member of society for the past 
20 years.  He has raised three children and he is in the process of helping raise two stepchildren while attending school without the use of alcohol.

3.  The applicant provides no additional evidence in support of 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.  His military records show he enlisted in the Regular Army on 24 October 1975.  He completed training and was awarded the military occupational specialty of motor transport operator.  The highest rank/grade he held was private first class/E-3.

3.  He accepted nonjudicial punishment (NJP) on two occasions between
6 August and 24 September 1976 for:

	a.  being absent without leave (AWOL) during the period 31 July to 6 August 1976; and

	b.  failing to go at the time prescribed time to his appointed place of duty on two occasions.

4.  Headquarters, 593d Support Group Special Court-Martial Order Number 47, dated 29 December 1976, shows the applicant was convicted by a special court-martial for being AWOL from 1 October to 29 October 1976.

5.  He was also charged with being AWOL from 17 February to 20 April 1977.

6.  On 2 May 1977, he consulted with counsel, and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged that he understood he could request a discharge for the good of the service because charges had been preferred against him, which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he understood he had been advised of the implications that were attached to his request.  He acknowledged he understood the elements of the offenses(s) charged.  He stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He acknowledged he understood if his request was approved he might be discharged under other than honorable conditions.  

7.  He waived his rights and elected to submit a statement in his own behalf.  In his statement he indicated that due to his drinking and military pressure he went AWOL again.  He had received a civil conviction for mail obstruction, he could no longer handle military life, and he believed it would be best if he returned to his home town in Virginia.

8.  On 15 May 1977, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed the issuance of an under other than honorable conditions discharge.

9.  On 18 May 1977, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 2 months, and 29 days of active service with 115 days of lost time.

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

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.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  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 discharge with a characterization of service 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 records show he received NJP for being AWOL and for failing to go at the time prescribed to his appointed place of duty on two occasions.  He was convicted by a special court-martial of being AWOL and he had a total of 115 days of lost time.

2.  He voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of a trial by court-martial after being charged with an offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged and he is not entitled to an honorable or a general discharge.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  He contends he has striven to be productive member of society, has overcome his problems for the last 20 years, raised his children, and attended school without using alcohol.  While such accomplishments are noteworthy they are not sufficient to mitigate the misconduct that led to his discharge.  His character of service is based on his performance and conduct during the period in which he served.  Therefore, he has not established a basis to justify upgrading his 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 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)                                         AR20110005819



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ABCMR Record of Proceedings (cont)                                         AR20110005819



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