IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110016044 


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 upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states, in effect, he had family issues during his military service which was the basis for his unauthorized absences and ultimately his discharge from the Army.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* a 5-page self-authored statement
* a 2-page Circuit Court judgment, dated 18 July 1976
* a character support letter

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 30 September 1974.  He completed training and he was awarded military occupational specialty 13B (cannon crewman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  The available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions as follows:

* on 21 March 1975 for failing to go at the time prescribed to his appointed place of duty on 21 March 1975
* on 17 December 1975 for

* being absent without leave (AWOL) during the period 6 to 8 December 1975
* violating a lawful general regulation on 8 December 1975 by receiving a meal in the dining facility while receiving basic allowance for subsistence

* on 18 November 1976 for being AWOL during the period 3 November 1976 to 13 November 1976

4.  On 28 June 1977, charges were preferred against the applicant for being AWOL during the period 5 January 1977 through 15 June 1977.

5.  On 29 June 1977, the applicant consulted with counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge 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.
7.  On 5 July 1977, the applicant's unit commander recommended approval of the discharge action with an under other than honorable conditions discharge. On 5 July 1977, the battalion commander concurred with the unit commander's recommendation.

8.  On 18 July 1977, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an Under Other Than Honorable Conditions Discharge Certificate.  On 2 August 1977, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 2 years, 4 months, and 11 days of creditable active service with 173 days of time lost.

9.  On 5 March 1990, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  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.

11.  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.

12.  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 request for discharge upgrade was carefully considered and it was determined that there is insufficient evidence to support this request.


2.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  Discharges under the provisions of this chapter are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows he was AWOL for 173 days.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general 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)                                         AR20110016044



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ABCMR Record of Proceedings (cont)                                         AR20110016044



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