BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110023979 


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 it has been more than 30 years since the incident that led to his discharge and he requests fair and just consideration of his application.

3.  The applicant provides no additional documentary evidence in support of his application.

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 28 September 1978 for a period of 4 years.  He was awarded military occupational specialty 13B (Cannon Crewman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record), item 21 (Time Lost) shows he was absent without leave (AWOL) for 70 days from 4 September through 12 November 1979.

4.  Court-martial charges were preferred against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit from on or about 4 September to on or about 13 November 1979.

5.  The applicant consulted with legal counsel and 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.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant submitted a statement with his request wherein he indicated he went AWOL because there was too much pressure being put on him by his superiors and he wanted to get out of the Army "because the Army (had) nothing to offer him."  He added he did not want to complete his enlistment obligation "because the Army disregarded [him] as an individual and [he] didn't want to serve his country that doesn't respect him as a man!"

	c.  The applicant and his counsel placed their signatures on the document.

6.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge with an Under Other Than Honorable Discharge Certificate.


7.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed he receive an Under Other Than Honorable Discharge Certificate.

8.  On 27 December 1979 he was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  It further shows:

	a.  He completed 1 year and 22 days of net active service this period.

	b.  He had time lost under Title 10, U.S. Code, section 972 from 4 September through 12 November 1979, a period of 70 days.

9.  On 13 September 1980, the applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge to an honorable discharge.  On 20 November 1981, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

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

	a.  Chapter 10 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 3-7a 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 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.  Records show the applicant was charged with violating Article 86 of the UCMJ for being AWOL from 4 September through 12 November 1979.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service during the period of service under review. Considering all the facts of the case, the characterization of service was appropriate and equitable.

3.  The applicant elected to request discharge in lieu of being court-martialed, he had 70 days time lost (i.e., 2 months and 10 days), and he completed approximately one-fourth of his 4-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110023979



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ABCMR Record of Proceedings (cont)                                         AR20110023979



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