IN THE CASE OF:	  

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110007816 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  He states he was young at the time and made some very bad mistakes.  He regrets having the current level of discharge and is hopeful that it will be upgraded to a general discharge under honorable conditions.

3.  He provides a copy of his DD Form 214 (Report of Separation 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, 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 records show he enlisted in the Regular Army on 2 February 1978 at the age of 18 years, 2 months, and 23 days.  He reported to Fort Leonard Wood, MO, for one-station unit training in military occupational specialty 12B (Combat Engineer).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows the highest grade he attained was private/E-1.  He also had three periods of being absent without leave (AWOL) totaling 232 days.

4.  A DD Form 458 (Charge Sheet) was prepared by the applicant's immediate commander on 4 June 1979 and shows he was charged with three specifications of AWOL from:

* 13 to 29 August 1978
* 19 October to 9 November 1978
* 13 November 1978 to 27 May 1979

5.  On 5 June 1979 after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement on his own behalf.

6.  His immediate commander endorsed the applicant's request for discharge and noted that he was charged with three periods of AWOL and had been apprehended by civilian authorities.  He was unable to adjust to military life and rehabilitation efforts were considered futile.

7.  On 26 June 1979, the general court-martial convening authority approved the applicant's request for discharge in lieu of trial by court martial.  He directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

8.  Accordingly, the applicant was discharged under other than honorable conditions in lieu of trial by court-martial on 3 July 1979.  He completed a total of 9 months and 12 days of active service with 1 month and 11 days of prior inactive service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

11.  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 to upgrade his discharge under other than honorable conditions to a general discharge was carefully considered; however, it is not supported by the evidence of record.

2.  He contends he was young at the time and made some bad mistakes.  The evidence of record shows he was nearly 19 years of age at the time of his discharge.  There is no evidence that he was any less mature than other Soldiers his age who were able to successfully complete their military obligations.

3.  The applicant has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows the applicant was charged with three specifications of being AWOL.  Court-martial charges were preferred against him and he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  His chain of command supported his request.

4.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis to grant the requested relief.

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)                                         AR20110007816



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ABCMR Record of Proceedings (cont)                                         AR20110007816



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