IN THE CASE OF:	  

		BOARD DATE:  8 May 2012

		DOCKET NUMBER:  AR20110021791 


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 a general discharge.

2.  He states he was afraid to live in the barracks because he was getting jumped on.  He was 19 years of age and did not know how to handle the situation.  He went to the chaplain for help while he was absent without leave (AWOL) but did not receive any help.  He had a 5-year old living with him at the time with his mother and was overwhelmed and under a lot of pressure.  He was hit in the head with a bat and had to go to the hospital.  People in his barracks told him that his first sergeant was having people jump on him and assault him.  This caused him to go AWOL.

3.  He provides his DD Form 214 (Certificate of Release or Discharge 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.  He enlisted in the Regular Army, on 23 January 1980, at the age of 18.  He was trained in and awarded the military occupational specialty of 64C (Motor Transport Operator).  The highest rank/grade he held was private/E-2.

3.  He accepted nonjudicial punishment (NJP) on 28 February 1981 for failing to go at the time prescribed to his appointed place of duty on 10 February 1981.

4.  On 3 November 1981, court-martial charges were preferred against him for being AWOL from on or about 19 April 1981 to on or about 26 October 1981.

5.  On 5 November 1981, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications attached to his request.  He acknowledged he understood the elements of the offenses(s) charged and was guilty of the charge(s) against him or of a lesser-included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood if his discharge request were approved he might be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effects of an under other than honorable conditions discharge and that as a result of the issuance of such a discharge he would be deprived of many benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He waived his rights.  He elected to submit a statement in his own behalf.  However, this statement is not available for review.

6.  The commander at the U.S. Army Personnel Control Facility at Fort Bragg stated he had personally interviewed the applicant.  The applicant had told him his approximate 190 days of AWOL was caused by his inability to adjust to the Army.  He stated he could not cope with the rules and regulations associated with Army life and he disliked constantly being told what to do.  On 18 July 1981, the applicant was arrested for petty theft and was eventually released to military authorities, arriving at the U.S. Army Personnel Control Facility on 3 November 1981.  The applicant stated he had no desire to remain in the Army and would go AWOL again if forced to remain.

7.  On 4 December 1981, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an under other than honorable conditions discharge.

8.  On 18 December 1981, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 3 months, and 15 days of active service.  He had three periods of time lost totaling approximately 225 days.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, in effect at the time, stated a member who had 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 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.  A discharge under other than honorable conditions was normally considered appropriate.

11.  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.  His age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

2.  He received NJP for failing to go at the time prescribed to his appointed place of duty.  He was charged with being AWOL for a period of 190 days.  Therefore, his service was unsatisfactory.

3.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  In view of the foregoing, there is an insufficient basis upon which to upgrade his discharge to a general 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)                                         AR20110021791



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ABCMR Record of Proceedings (cont)                                         AR20110021791



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