IN THE CASE OF:	  

		BOARD DATE:	    15 November 2011

		DOCKET NUMBER:  AR20110011132 


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

2.  The applicant states that it has been 29 years since his discharge.

3.  The applicant provides no additional documents with 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.  The applicant enlisted in the Regular Army in Pittsburgh, Pennsylvania for a period of 3 years and assignment to the 7th Infantry Division.  At the time of his enlistment he indicated that he had experimented with marijuana and had no further use for it.  He also indicated that his parents resided in Portland, Oregon.
3.  He completed his one-station unit training as an indirect fire infantryman at Fort Benning, Georgia and was transferred to Fort Ord, California.

4.  On 15 April 1981 he was transferred to Hawaii for assignment to Company A, 1st Battalion, 5th Infantry Regiment, 25th Infantry Division. 

5.  On 28 April 1982 he was convicted by a summary court-martial of the wrongful possession of marijuana.  He was sentenced to a reduction to the pay grade of E-3 and 30 days restriction.

6.  On 1 May 1982, he went absent without leave (AWOL) and remained absent in desertion until he surrendered to military authorities at Fort Ord on 31 May 1982 and was returned to his unit in Hawaii where charges were preferred against him on 10 June 1982 for being AWOL from 1 May to 31 May 1982, for missing movement by design with his unit to the Philippines, and breaking restriction. 

7.  On 17 June 1982, after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charge against him or of a lesser-included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge. 

8.  He also elected to submit a statement in his own behalf in which he stated that he had family problems at home and his parents needed him to help run a business that they wanted to buy and to help with his younger brother who was getting into trouble.  He went on to state that he had served honorably for 2 1/2 years before getting into any trouble and realized that he had made a mistake in going AWOL and wanted to be discharged.

9.  His entire chain of command recommended approval of his request and recommended that he be discharged under other than honorable conditions.

10.  The appropriate authority (a major general) approved his request for discharge on 25 June 1982 and directed that he be discharged under other than honorable conditions.

11.  On 7 July 1982, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 8 months and 3 days of active service and had 30 days of lost time due to AWOL.  His official records contain no evidence of any individual awards or achievements earned during his service.

12.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

13.  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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charge against him.

3.  The applicant's contentions have been noted; however, given the nature of his misconduct and his overall undistinguished record of service, his contentions are not sufficiently mitigating to warrant relief.  His service simply did not rise to the level of a general 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)                                         AR20110011132



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ABCMR Record of Proceedings (cont)                                         AR20110011132



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