IN THE CASE OF:	  

		BOARD DATE:  8 March 2012

		DOCKET NUMBER:  AR20110018375


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge was inequitable because it was based on a single isolated incident in an otherwise error-free 44-month period of service.  He states he was a good Soldier with 1 year, 11 months, and 25 days of foreign service, during which time he received the Army Good Conduct Medal.  He states he was absent without leave (AWOL) because his grandmother, who raised him, had a heart attack and he was refused emergency leave because she was not his biological mother.  For this reason, he chose to go AWOL, which was a mistake he considers the "worst and most stupid mistake of his life."  

3.  The applicant provides no additional evidence.

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 29 May 1979.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  On 29 January 1981, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, from on or about 15 to 19 January 1981.  

4.  On 29 January 1982, he accepted NJP, under the provisions of Article 15 of the UCMJ, for wrongfully possessing marijuana on 18 January 1982.  

5.  On 19 November 1982, he was reported as AWOL from his unit, Battery C, 1st Battalion, 20th Field Artillery Regiment, 4th infantry Division, Fort Carson, CO.  He remained AWOL until he returned on 21 November 1982.

6.  On 22 November 1982, he was reported as AWOL from his unit and he remained AWOL until 9 December 1982.  

7.  On 29 December 1982, he was reported as AWOL from his unit, and on       30 December 1982, he was dropped from the rolls of the Army.  He remained AWOL until 12 March 1983, at which time he was confined by civil authorities.  On 17 March 1983, he was released from confinement by civil authorities and returned to military control at Fort Carson, CO.

8.  Court-martial charges were preferred against him for the above three specifications of being AWOL.

9.  His discharge packet is not available for review; however, his record contains a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 8 April 1983, in the rank/grade of private/E-1, after the completion of 3 years, 6 months, and 29 days of net active service.  This form further shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),  chapter 10, in lieu of trial by court-martial, and he was issued an under other than honorable conditions discharge.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11.  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.

12.  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.

13.  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 an upgrade of his under other than honorable conditions discharge has been carefully considered; however, there is insufficient evidence to support his request.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  While his discharge packet is unavailable for review, his record contains a properly-constituted       DD Form 214 that shows he was discharged on 8 April 1983, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, request a discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it appears that the applicant’s discharge accurately reflects his overall record of service; therefore, he is not entitled to an upgrade of his 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20110018375



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