IN THE CASE OF:	  

		BOARD DATE:  14 June 2012

		DOCKET NUMBER:  AR20110024439 


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 discharge under other than honorable conditions be upgraded. 

2.  The applicant states:

* He wants his discharge upgraded for employment and benefit purposes
* He requested to remain in the service and was denied
* He was very young and immature
* He was raised by his grandmother and great grandmother
* When he lost both grandmothers in a 60-day period he was devastated
* He went absent without leave (AWOL) to attend their funeral services because he did not have enough leave accrued to do so
* He was wrong in his actions

3.  The applicant provides no documentary 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 was born on 22 October 1957.  He enlisted in the Regular Army (RA) on 21 November 1978 for a period of 3 years.  

3.  On 1 February 1979, nonjudicial punishment (NJP) was imposed against the applicant for leaving his guard watch without authority and with intent to abandon the watch.

4.  On 8 May 1979, NJP was imposed against the applicant for being AWOL from 4 April 1979 to 2 May 1979.

5.  He went AWOL on 10 May 1979 and returned to military control on 21 July 1986.  On 29 July 1986, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

6.  On 29 July 1986, he consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

7.  On 13 August 1986, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

8.  He was discharged under other than honorable conditions for the good of the service on 27 August 1986 under the provisions of Army Regulation 635-200, chapter 10.  He completed 5 months and 28 days of creditable active service and 2,686 days of lost time.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for 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 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.

11.  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.

12.  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 contends he was very young and immature.  However, age is not a mitigating factor.  He was 21 years old when he enlisted in the RA.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  

2.  He wants his discharge upgraded for employment purposes.  However, a discharge is not upgraded for the purpose of enhancing employment opportunities.

3.  He is seeking benefits (apparently he means from the Department of Veterans Affairs (DVA)).  However, a discharge is not changed for the purpose of obtaining DVA benefits.

4.  The evidence of record does not support his contention he requested to remain in the service and was denied.  Evidence shows he voluntarily requested discharge in lieu of court-martial on 29 July 1986.  
5.  His brief record of service included 2 NJPs and 2,686 days lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

6.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110024439





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ABCMR Record of Proceedings (cont)                                         AR20110024439



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