BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110022934 


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.  He states he went home on a pass because his mother was dying of cancer.  She passed away while he was on leave.  Her death "messed [him] up" and he started using drugs and alcohol.  He states he "just gave up."  He is requesting a general discharge because he was second in his basic combat training (BCT) class and at the top of his advanced individual training (AIT) class for military occupational specialty (MOS) 76Y (Supply Clerk) at Fort Jackson, SC.  At Fort Polk, LA, he was the unit supply clerk and unit armorer for his company and he was "getting ready to make [private first class (PFC)]/E-3]."  He states he had a good military record and he wanted to make a career of serving his country.

3.  He provides no documentary evidence in support of his request.

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 24 March 1977.  After completing initial entry training, he was awarded MOS 76Y.  His record does not contain documentation of his performance in BCT or AIT.  He was advanced to PFC/E-3 effective 1 February 1978, which was the highest grade he held.

3.  His record contains DA Forms 4187 (Personnel Action) that show the following changes in his duty status:

* from ordinary leave to absent without leave (AWOL), effective 7 March 1978
* from AWOL to dropped from rolls, effective 6 April 1978
* from confined by civil authorities to present for duty, effective 12 April 1978

4.  A DD Form 458 (Charge Sheet), dated 25 April 1978, shows he was charged with being AWOL from on or about 7 March to on or about 12 April 1978.

5.  On 26 April 1978, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial, the maximum punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and his rights.

6.  After consulting with counsel, he 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.  In his voluntary request for discharge, he acknowledged he was guilty of the charge against him or a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood if his request were accepted, he could be discharged under other than honorable conditions.  He further acknowledged he understood that, as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the Veterans Administration, be deprived of his rights and benefits as a veteran under both Federal and State laws, and encounter substantial prejudice in civilian life.  He elected to submit a statement in his own behalf.


7.  The statement he submitted with his request for discharge shows, in part:

* he joined the Army because he got two young ladies pregnant
* he married one and he was paying child support to the other
* he wanted to learn a skill that was needed in civilian life and he had plans to finish his college education
* he requested a discharge because he was not earning enough money to support himself, his wife, and two children
* before he went AWOL, he "tried to get a hardship or [a] compassionate reassignment"
* he went AWOL while on emergency leave
* his mother had cancer and could never go back to work

8.  On 22 May 1978, the separation authority approved his request, directed his reduction to private (PV1)/E-1, and directed the issuance of a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  On 9 July 1978, he was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 2 months, and 11 days of total active service with 36 days of time lost.

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

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

	a.  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 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.

	b.  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 evidence of record does not support the applicant's request for upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with and admitted he was guilty of being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  He admitted he was guilty of being AWOL.  The record shows the separation authority did not find any mitigating factors that warranted giving him anything other than the discharge under other than honorable conditions normally considered appropriate.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled 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)                                         AR20110022934



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ABCMR Record of Proceedings (cont)                                         AR20110022934



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