IN THE CASE OF:	  

		BOARD DATE:  16 February 2012

		DOCKET NUMBER:  AR20110017690 


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 an honorable discharge.

2.  The applicant states at the time of his offense and discharge he had just had a serious motorcycle accident and his wife of 10 years was leaving him for a fellow Soldier in his unit.  He states he was completely overwhelmed and he made some bad decisions.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Arizona Board of Fingerprinting Good Cause Exception Reference Form
* A letter from the All Saints Catholic Church Pastor, dated 17 November 2010
* A letter from the Knights of Columbus Treasurer and Honor Guard Commander, dated 12 November 2010
* A letter from the Knights of Columbus, Council 9485, dated 17 November 2010
* A letter from and friend and neighbor, dated 18 November 2010

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 U.S. Army for 4 years on 5 October 1976.  He completed training as a construction equipment repairer.  He reenlisted in the Army for 3 years on 15 May 1980.

3.  The applicant's records show he went absent without leave (AWOL) on 1 December 1980 and he remained AWOL until he surrendered to military authorities on 9 February 1981.

4.  The facts and circumstances surrounding the applicant's discharge are not on file.  His DD Form 214 shows he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10.

5.  There is no evidence in the available record showing that he sought assistance through his chain of command for any family problems he may have had while he was in the Army.

6.  A review of his records does not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  The applicant submits letters from his church pastor and his friends all attesting to his character and good post-service conduct.  He also submits an Arizona Board of Fingerprinting Good Cause Exception Reference Form signed by an individual who indicates she would recommend the applicant be granted a fingerprint clearance card.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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.  A discharge under other than honorable conditions would normally be furnished an individual who is discharged for the good of the service.

	b.  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.

	c.  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 contentions have been noted.  His supporting evidence has been considered.

2.  However, there is no evidence in the available record, nor has the applicant submitted any evidence, showing he sought assistance through his chain of command for family problems he may have been experiencing. 

3.  The available records show he went AWOL on 1 December 1980 and he remained AWOL until he surrendered to military authorities on 9 February 1981.

4.  His post-service conduct has been considered; however, it is insufficiently mitigating to warrant the requested relief.

5.  In view of the foregoing, his request should be denied.








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)                                         AR20110017690



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ABCMR Record of Proceedings (cont)                                         AR20110017690



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