IN THE CASE OF:	  

		BOARD DATE:  15 January 2013

		DOCKET NUMBER:  AR20120012573 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he was absent without leave (AWOL) for 109 days because of the death of his mother and caring for his ailing grandmother.  He goes on to state that he tried to have the Army station him closer to home and his request was denied.

3.  The applicant provides no additional documents 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 resided in Chesapeake, Virginia when he enlisted in the Regular Army on 13 March 1979 for a period of 3 years.  He completed training as a medical specialist and had a follow-on assignment to Fort Benning, Georgia.  He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training as a medical specialist at Fort Sam Houston, Texas before being transferred to Fort Benning for duty as an ambulance attendant. 

3.  On 23 February 1981, the applicant underwent surgery for a bunion deformity of the left foot and was placed on convalescent leave from 2 March to 2 April 1981.  He failed to return from convalescent leave and was reported as AWOL effective 2 April 1981.  He remained absent in desertion until he surrendered to civilian authorities in Chesapeake, Virginia  and was transferred to Fort Bragg, North Carolina where charges were preferred against him for being AWOL from 
2 April to 20 July 1981. 

4.  At the time of his return he indicated that he attempted to apply for a compassionate reassignment and he was turned down.  He also stated that he turned himself in to get discharged and he would continue to go AWOL until he was discharged.

5.  On 29 July 1981, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also declined to submit a statement in his own behalf. 

6.  On 31 August 1981, the appropriate authority approved his request and directed that he be discharged under other than honorable conditions.

7.  Accordingly, he was discharged under other than honorable conditions on 15 September 1981 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 2 years, 1 month, and 9 days of total active service and had 109 days of lost time due to AWOL.

8.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.
9.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.  

11.  Army Regulation 614-200 (Assignments, Detail, Transfer) in effect at the time provided the policies and procedures for applying for a compassionate reassignment.  It provided, in part, that Soldiers in a leave status may report to the nearest Army installation or activity that has a personnel office to apply for a compassionate reassignment provided they have a verified compassionate problem that can only be resolved by reassignment.  If the local commander determined that grounds exist for a compassionate reassignment, a Soldiers may be attached for 30 days to the installation processing the request and a notification will be dispatched to the parent unit.  Failure to apply within 30 days will result in the individual being returned to their parent unit.

12.  Chesapeake is an independent city located in the South Hampton Roads portion of the Hampton Roads metropolitan area of Virginia.  Chesapeake is the second largest city by land area and third largest by population in the Commonwealth of Virginia.  At least three Army bases (Forts Eustis, Monroe and Story) were located in the Hampton Roads area.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the absence of any evidence to show that he attempted to apply for a reassignment before going into an AWOL status.  

4.  Accordingly, his service simply did not rise to the level of under honorable conditions and there is no basis to grant his request for an upgrade of his 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)                                         AR20120012573





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ABCMR Record of Proceedings (cont)                                         AR20120012573



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