BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110007930 


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

2.  The applicant states, in effect, at the time he went absent without leave (AWOL), he was home on leave trying to fix his marriage.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (DVA) printout
* extracts from his military personnel records
* self-authored statements from counsel

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, an upgrade of the applicant’s under other than honorable conditions discharge. 

2.  Counsel states:

* the applicant served with honor and did very well in Germany until his wife started running around
* the applicant was unable to reconcile with his wife and went into a deep depression and could not get his head on right
* the applicant eventually got himself together and turned himself in
* the applicant regrets his actions because the Army he loved was good to him

3.  Counsel provides self-authored statements.

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 enlisted in the Army on 27 June 1977 and reenlisted on 21 June 1979. He completed training and was awarded military occupational specialty 11H10 (Heavy Anti-Armor Weapons Crewman).  The highest rank/grade he attained while on active duty was specialist four/E-4.

3.  The available records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice on 5 August 1980 for being absent without leave during the period 16 June 1980 through 21 July 1980.

4.  DA Form 3835 (Notice of Unauthorized Absence from the United States Army) and DA 3838 (Notice of Return of United States Army Member from Unauthorized Absence) shows the applicant went AWOL on 25 February 1982 and was dropped from the rolls on 25 March 1982.

5.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  The DD Form 214 issued to the applicant at the time shows he was separated under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, under separation program designator (SPD) code JFS (administrative discharge - conduct triable by court-martial), with an under other than honorable conditions discharge.  He completed 2 years, 9 months, and 29 days of active service during this period.  He is also credited with 2 years, 2 months, and 24 days of prior active service.
6.  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.

7.  The applicant and his counsel provided self-authored statements explaining the rationale for the applicant’s AWOL, a copy of his DD Form 214, DVA printout, and extracts from his military personnel records.

8.  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.

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 and counsel’s request that his discharge under other than honorable conditions should be upgraded to a general under honorable conditions discharge was carefully considered and determined to be without merit.

2.  Records show the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110007930



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ABCMR Record of Proceedings (cont)                                         AR20110007930



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