IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110022171 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

	a.  He went absent without leave (AWOL) due to not being granted emergency leave to take care of his son.  He was in a different state and the child's mother was not giving him proper or adequate care.  He contacted the chaplain and the Red Cross but the Army continued to refuse him the leave he so desperately needed.  He felt his family was more important than the Army so he went home.

	b.  He loved what the Army stood for and serving his country.  He now serves his country by volunteering his time at the American Legion and assists veterans in filing for disability benefits.  This is why he obtained his bachelor's degree and why he is working on getting his masters degree.  He regrets his actions [while in the Army] and has attempted to gain peace of mind by working with veterans and staying involved in the community. 

3.  The applicant provides:

* His DD Form 214 (Report of Separation from Active Duty)
* An unofficial college transcript
* A page titled Volunteerism/Achievements
* Eighteen statements of support

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's records show he enlisted in the Regular Army on 25 October 1977 and he held military occupational specialty 13B (Cannon Crewmember).  He was assigned to the 1st Battalion, 16th Field Artillery, Fort Hood, TX, on 10 Feb 1978.

3.  On 7 June 1978, he was reported as AWOL from his assigned unit and was subsequently dropped from the rolls on 7 July 1978.

4.  On 5 January 1979, he was apprehended by civilian authorities and returned to military control.  In an interview conducted after he was returned to military control, the applicant stated he went AWOL when he found out he was on assignment to Germany and his spouse did not want to go there.  He had since divorced and was trying to obtain custody of his son.  Also, the Army did not pay enough.  When he was in school, he did not get along with others and got into fights.  He thought the sergeants in the Army were too bossy and he didn't like being told what to do.  He joined the Army because his friends talked him into it and if he had the chance he would go AWOL again.

5.  On 15 January 1979, court-martial charges were preferred against him for one specification of being AWOL from 7 June 1978 to 5 January 1979.

6.  On 18 January 1979, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

7.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

8.  On 23 January 1979, his immediate commander recommended approval of his request for discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He stated the applicant was unable to adjust to military life, he was charged with 212 days of AWOL, and had been apprehended by civilian authorities.  

9.  On 26 January 1979, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 2 February 1979, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged by reason of conduct triable by court-martial with a under other than honorable conditions characterization of service.  He completed 8 months and 8 days of active service with 212 days (7 months and 2 days) of time lost due to AWOL.

11.  On 24 March 1987, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was proper and equitable. 

12.  The applicant provides eighteen statements of support, dated between 10 October and 24 October 2011, written by various leaders of the community, wherein they stated the applicant had excelled as a student and citizen.  He had a strong work ethic and volunteered in the community.

13.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to honorable from under other that honorable conditions because he went AWOL when he was denied emergency leave to take care of his son.  

2.  The evidence of record confirms the applicant himself verified he went AWOL because he was on assignment to Germany, the Army didn't pay enough, he didn't like being told what to do, and he would go AWOL again if he had the chance.

3.  He was AWOL for 212 days when he was returned to military control by civilian authorities and was subsequently charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

4.   As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

5.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

6.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he was a deserter and went AWOL for 212 days during his military service.

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)                                         AR20110022171





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ABCMR Record of Proceedings (cont)                                         AR20110022171



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