IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120020418 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* it has been over 30 years from the time when he was discharged from the Army
* he received a less than honorable discharge  because of an error in pay records indicating he was absent without leave (AWOL)
* he was back on duty, but not receiving pay for several months
* he was reported as AWOL because "they" never reported him back on duty by the information contained in his pay records
* he received a less than honorable discharge and he would like the error corrected

3.  The applicant provides no additional 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 enlisted in the Regular Army on 21 February 1980.  He completed training as a light weapons infantryman.

3.  On 3 September 1980, the applicant was convicted by a summary court-martial of being AWOL from 4 June until 15 July 1980.

4.  The applicant accepted nonjudicial punishment (NJP) on 26 September 1980 for being AWOL from 22 September until 25 September 1980.

5.  On 8 December 1981, the applicant was notified that charges were pending against him for being AWOL:

* from 2 February until 11 March 1981
* from 16 March until 17 March 1981
* from 23 March until 2 June 1981
* from 10 June until 1 December 1981

6.  The applicant acknowledged receipt of the notification on 9 December 1981.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In an interview with his commanding officer, the applicant stated:

* he was aware of the consequences of a discharge under other than honorable conditions
* his 281 days of AWOL were caused by his dissatisfaction with the Army
* he originally went AWOL because of a pay problem and the fact that he disliked his job as an infantryman
* he had no desire to remain in military service and would depart AWOL again if he was not granted a discharge

7.  The commanding officer stated that the applicant:

* received three Articles 15 for failure to repair
* was dissatisfied with the processing procedures and departed AWOL again after being AWOL for 15 days
* was arrested for being AWOL from the Army
* had an attitude toward the military and a lack of rehabilitative potential

8.  The appropriate authority approved the request for discharge on 8 January 1982 and directed the issuance of a discharge under other than honorable conditions.  On 26 January 1982, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 1 year and 6 days of net active service this period and about 281 days of lost time.

9.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  Army Regulation 635-200 (Personnel Separations) 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 3-7a of Army Regulation 635-200 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.

   c.  Paragraph 3-7b of Army Regulation 635-200 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’s contentions have been noted.  

2.  The available evidence suggests that he accepted NJP on three separate occasions for failure to repair.  He accepted NJP on one occasion for being AWOL and he received a summary court-martial for being AWOL.
3.  The available evidence also suggests that he had approximately 281 days of lost time due to AWOL.  He submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

4.  There is no evidence in the available record showing that errors in his pay records was the cause for him appearing to have been AWOL when he was really present for duty.  The fact he was discharged over 30 years ago is not sufficiently mitigating to warrant an upgrade of his discharge.

5.  In view of the foregoing, the applicant’s request should be denied. 

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)                                         AR20120020418



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ABCMR Record of Proceedings (cont)                                         AR20120020418



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