IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120010661 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states:

	a.  His discharge is based on the fact he went absent without leave (AWOL) for 30 days and then turned himself in.  He was not aware his discharge was under other than honorable conditions.

	b.  He went AWOL because his company commander told him he would be tried by court-martial for failure to obey a direct order to pay child support.  The reason he withheld child support was because an issue of paternity needed to be resolved.  His former wife was involved in prostitution and drugs.  These issues were being resolved and he considered them to be a private matter.

	c.  His company commander also told him his military occupational specialty (MOS) was going to be reclassified from 93J (air traffic control radar controller) to a motor pool MOS and he would lose his E-4 rank.  He left a great accounting job in 1978 in response to a media blitz by the Armed Forces promising guaranteed MOS training of your choice and assignment locations.  The Army trained him for air traffic control but to deny him an opportunity to work in that field, take away his rank, and threaten a court-martial were too much for him at the time.  His decision then to go AWOL was to separate himself from the nightmare and return to civilian life.

	d.  Prior to this time, he had a very good military record.  Due to the difficult economy, he has been homeless for over a year.  He desperately needs some relief which could be available to him and he could become a productive member of society again.  

3.  The applicant provides:

* Two letters of support
* 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.  The applicant enlisted in the Regular Army on 22 September 1978 for a period of 4 years.  He completed his training and was awarded MOS 93J.

3.  On 21 September 1979, nonjudicial punishment (NJP) was imposed against him for behaving with disrespect toward a superior commissioned officer, disobeying a lawful order, and using disrespectful language toward a superior noncommissioned officer.

4.  He was AWOL from 20 May 1980 to 21 June 1980.  Charges were preferred against the applicant for this AWOL period on 30 June 1980.  Trial by special court-martial was recommended.

5.  On 1 July 1980, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge 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 other than honorable conditions, he might be ineligible for many or all benefits administered by the Veterans Administration, he might 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 a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

6.  On 21 July 1980, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

7.  On 19 August 1980, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 9 months, and 26 days of creditable active service with 32 days of lost time.

8.  He provided a letter of support from his brother who attests:

* The applicant was involved in a divorce
* He told him about his divorce from a woman who was involved in acts of prostitution and drug use
* his wife tried to solicit him
* he told him about his frustration with his company commander, that he was not being listened to, and he was threatened in a matter in which the Army should not have had a concern

9.  He also provided a letter of support from a veteran services specialist for Father Bill's and Mainspring (provides services to homeless veterans) who states the applicant's discharge from the Army has negatively impacted his access to housing assistance, employment, and veteran's benefits.

10.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  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.
12.  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.

13.  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 not aware his discharge was under other than honorable conditions.  However, the evidence shows he consulted with counsel on 1 July 1980 and requested a discharge for the good of the service in-lieu of trial by court-martial.  He acknowledged in his request that he understood he might be discharged under other than honorable conditions.

2.  A discharge is not changed for the purpose of obtaining veterans benefits.

3.  The letters of support submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  His record of service included one NJP and 32 days of 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.

5.  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.

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

7.  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)                                         AR20120010661





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ABCMR Record of Proceedings (cont)                                         AR20120010661



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