IN THE CASE OF:	 

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130009375 


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 honorable.

2.  The applicant states:

* his father was sick at the time
* he was a young man not thinking that his discharge would hurt him
* he is older and knows better now
* he wants his discharge upgraded due to a family emergency/obligations
* while he was at home on leave his father became ill and he requested an extension of leave, which was denied
* he felt it was his obligation to be with his family during this hardship and he went absent without leave (AWOL) for 31 days
* if he had known the consequences of his actions he would have reconsidered his choices 

3.  The applicant provides documentation on discharge upgrading and discharge review.

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 29 June 1956.  Having completed 2 years, 
11 months, and 15 days of prior active service in the Regular Army (RA), he again enlisted in the RA on 19 August 1981 for a period of 3 years.  He completed his training and was awarded military occupational specialty 76W (petroleum supply specialist).   

3.  In October 1981, nonjudicial punishment (NJP) was imposed against him for making a false official statement. 

4.  In April 1982, NJP was imposed against him for being AWOL from 15 March 1982 to 8 April 1982.

5.  He went AWOL on 2 May 1982 and returned to military control on 15 June 1982.  On 17 June 1982, charges were preferred against him for the AWOL period.  

6.  On 18 June 1982, 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 conditions other than honorable and given an under other than honorable discharge, 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.  

7.  On 24 June 1982, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.


8.  On 15 July 1982, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 8 months and 22 days of creditable active service during this enlistment with 68 days of lost time.  

9.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an 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.

	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 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 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 a young man at the time of his discharge.  However, age is not a sufficiently mitigating factor.  He completed almost 3 years of service before he enlisted in the RA in 1981 at age 25.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.   


2.  He contends he went AWOL due to family problems/obligations.  However, family problems alone are normally not a basis for upgrading a discharge.

3.  Since his record of service during his last enlistment included two NJPs and 68 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  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 wherein he could have voiced his concerns; however, he elected not to do so.

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

6.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20130009375



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ABCMR Record of Proceedings (cont)                                         AR20130009375



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