IN THE CASE OF:  

		BOARD DATE:  15 October 2015	  

		DOCKET NUMBER:  AR20150003010 


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 under other than honorable conditions discharge be upgraded.

2.  He states that at the time he accepted the discharge, he was informed by the commanding officer that the discharge would automatically be upgraded after one year.  He adds it has been 30 plus years and the status of his discharge is still the same.  Additionally, he maintains he was 2,500 miles away when the contraband was found in his area.  

3.  He does not provide any 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 1 February 1978 for a period of 3 years.

3.  On 13 May 1980, charges were preferred against him for being absent without leave (AWOL) from 22 September 1979 to 8 May 1980.

4.  On 14 May 1980, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  He elected to submit a statement in his behalf.

6.  In his statement, he requested an honorable discharge based on his mother's illness.  He stated that his doctor sent a written statement concerning the facts about his family, his mother's illness, and their income.  He also stated that he sent a statement to his unit a week after he was gone and was informed to keep in contact with them.  He added that he called the unit every two weeks for a month.

7.  On 8 August 1980, the appropriate authority approved his request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 15 August 1980, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions characterization of service.  It also shows he completed 1 year, 10 months, and 29 days of net active service during this period with time lost from 22 September 1979 to 7 May 1980 (229 days).

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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 evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The records show he admitted he was guilty of being AWOL from 22 September 1979 to 8 May 1980.  The record further shows he voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.

2.  There are no provisions in the Army regulations for automatically upgrading a discharge after a period of time has elapsed.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.  Therefore, the applicant’s contention that he was told his discharge would be upgraded after a year is insufficient to upgrade his under other than honorable conditions discharge. 


3.  The applicant's record of service shows 229 days of lost time due to being AWOL.  Based on his record, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel. 

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)                                         AR20150003010



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ABCMR Record of Proceedings (cont)                                         AR20150003010



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