IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110007876 


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

2.  The applicant states that his first sergeant (1SG) disliked him; therefore, when he was on leave and asked for an extension, the 1SG told him "no" he could not have an extension but the company commander told him "yes."  When he returned from his period of leave, the commander had departed, and he was being carried in an AWOL status.  The 1SG told him he was going to bust him to "E Nothing”  The new company commander told him there was nothing he could do; therefore, he left and returned 30 days later thinking he would be reassigned to a different unit.  However, when he returned he received more threats from his 1SG and he went AWOL again.  By this time he was considered a deserter.  He knows now what he did was wrong, but at the time he had no choice.  He wanted to stay in the Army, and make it a career.  Prior to this misconduct he was a good Soldier.  He had just reenlisted for a 6-year term of service.

3.  The applicant provides no additional documentation in support of this case.

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 served in the Regular Army from approximately 6 January 1976 to 11 July 1979, in military occupational specialty (MOS) 11B (Infantryman), until he was honorably separated for immediate reenlistment. 

3.  On 12 July 1979, he reenlisted in MOS 11B for a 6-year term of service.

4.  A DD Form 458 (Charge Sheet), dated 25 January 1980, shows court-martial charges were preferred against him for being AWOL during the periods:

* 2 October through 16 October 1979
* 2 November through 17 December 1979
* 18 December 1979 through 21 January 1980
   
5.  On 28 January 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant acknowledged in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life.  He elected to provide a statement in his own behalf.

6.  The applicant stated that he went AWOL because he could not get his wife to come back to him and that his father was ill.  He indicated his recruiter told him that he would be in Hawaii by October at the latest since he reenlisted in mid-July 1979.  His personal problems had built up and he could not continue his military duties as a Soldier without losing his sanity.

7.  On 8 February 1980, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  

8.  On 21 February 1980, the applicant was discharged with a characterization of service of under other than honorable conditions.  He had completed a total of 
3 months and 11 days of creditable active service this period and 93 days of lost time.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.  

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 contends he went AWOL because his 1SG threatened him. However, there is no evidence in his available records that shows his 1SG threatened him or that he sought assistance from his chain of command, a chaplain, or other community support services personnel for help with his family situation before resorting to go AWOL.  There is also no evidence to show he actually went AWOL to resolve his issues with his 1SG.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Absent evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 
3.  The applicant's records show he had three instances of AWOL, two for lengthy periods.  He had completed 3 months and 11 days of service on his 
6-year term of service and he had 93 days of lost time due to being AWOL.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuing an honorable or general discharge.  Therefore, there is no basis for granting the applicant's 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 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)                                         AR20110007876



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ABCMR Record of Proceedings (cont)                                         AR20110007876



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