IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110015612 


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 under honorable conditions.

2.  The applicant states he is aware he is responsible for his action in deciding to go absent without leave (AWOL).  This decision has followed him for the last 
32 years.  He has been denied jobs, loans, and now his family business is suffering from it.  He believes he and his family have suffered enough for one bad decision he made in the military.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) with an effective date of 26 June 1979.

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.  He enlisted in the Regular Army on 12 December 1977 for a period of 3 years. He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 16 August 1978, he accepted nonjudicial punishment (NJP) for being AWOL 5 - 18 July 1978.

4.  On 21 May 1979, court-martial charges were preferred against the applicant for being AWOL from 6 March to 15 May 1979.

5.  In a statement, dated 25 May 1979, he declared he had been advised by his defense counsel that the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  Knowingly, willingly, and voluntarily he declared that he was AWOL from 6 March to 15 May 1979.

6.  On 25 May 1979, he consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Under Other Than Honorable Conditions Certificate
* advised he could submit statements in his own behalf

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than other honorable conditions discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  He submitted a statement in his own half.  He stated he was 19 years old and only got to the 10th grade in high school.  He was asking for a chapter 10 because he was having problems with his wife and it was coming to a divorce.  He did not want a divorce and wanted to get out of the Army.

9.  His intermediate commanders recommended his request for discharge be approved and that his discharge should be under other honorable conditions.  On
14 June 1979, the appropriate authority approved the applicant's request for discharge for the good of the service and directed his discharge be under other than honorable conditions.

10.  On 26 June 1979, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 due to conduct triable by court martial.  He had completed 1 year, 3 months, and 20 days of active service that was characterized as under other than honorable conditions.  He had 85 days time lost.

11.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  Whenever there was doubt, it was to be resolved in favor of the individual.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

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

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an under other than honorable conditions discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

3.  His 85 days of time lost shows his service to be unsatisfactory.  Therefore, there is an insufficient basis to upgrade his discharge to an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20110015612



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ABCMR Record of Proceedings (cont)                                         AR20110015612



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