IN THE CASE OF:	 

		BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110015466 


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

2.  The applicant states he went absent without leave (AWOL) to be with his wife who was having complications during the birth of their second child.  He further states there was no one to look after his one-year old son throughout his wife’s pregnancy.

3.  The applicant provides 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.  The applicant enlisted in the Regular Army on 26 July 1976.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 52B (Power Generator Equipment Operator).  The highest rank/grade he attained while serving on active duty was private/E-2.  However, at the time of his discharge he held the rank/grade of private/E-1.

3.  On 19 May 1977, charges were preferred against the applicant for being absent without leave (AWOL) for the period 15 February through 13 May 1977.

4.  On 19 May 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the  Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement with his request.

6.  On 26 May 1977, the separation authority approved the applicant's request for discharge.  On 3 June 1977, the applicant was discharged accordingly with a discharge under other than honorable conditions.  The DD Form 214 he was issued shows his net active service was not verified and he was separated from service on temporary records and an affidavit.  His total time lost is recorded as 87 days.

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

8.  There is no evidence in the applicant's personnel service record which shows the applicant sought assistance from his chain of command to obtain a hardship reassignment to care for his wife and son during her pregnancy.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

10.  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 contention that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The applicant alleges that family issues required him to return home to care for his son.  There is no evidence in his military records and the applicant has not provided sufficient evidence which shows he sought assistance from his chain of command to address this issue.  Additionally, there is no evidence which shows the applicant's misconduct was a direct result of the alleged family issues.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

3.  His record shows he was charged with the commission of an offense 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.

4.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general under honorable conditions 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)                                         AR20110015466



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ABCMR Record of Proceedings (cont)                                         AR20110015466



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