RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2007 DOCKET NUMBER: AR20060016974 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Gerard W. Schwartz Acting Director Ms. Wanda L. Waller Analyst The following members, a quorum, were present: Mr. William Crain Chairperson Mr. Donald Lewy Member Mr. Roland Venable Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded to honorable. 2. The applicant states that he was discharged from the Army for being absent without leave (AWOL). He also contends that he was told he would be discharged with a general discharge and that is what he signed. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 3 August 1982. The application submitted in this case is dated 17 November 2006. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant enlisted on 22 February 1978 for a period of 3 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 15E (Pershing Missile Crewman). 4. On 21 March 1979, nonjudicial punishment was imposed against the applicant for being AWOL from 31 December 1978 to 5 March 1979. His punishment consisted of a reduction to E-1 and a forfeiture of pay. 5. The applicant went AWOL on 24 April 1979, was apprehended by civil authorities on 3 October 1979 and returned to military control. He went AWOL on 7 October 1979 and returned to military control on 14 July 1980. He went AWOL again on 15 July 1980 and returned to military control on 5 January 1982. On 11 February 1982, charges were preferred against the applicant for the AWOL periods. Trial by special court-martial was recommended. 6. On 25 June 1982, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law. He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge. He elected not to make a statement in his own behalf. 7. The decision of the separation authority is not available. 8. Accordingly, the applicant was discharged under other than honorable conditions on 3 August 1982 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial. He had served a total of 1 year, 3 months, and 16 days of active service with 1047 days of lost time due to AWOL. 9. There is no evidence that the applicant applied to the Army Discharge Review Board for 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. Chapter 10 of that regulation provides, in pertinent part, 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. 11. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 12. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The evidence of record does not support the applicant’s contention that he was told he would be discharged with a general discharge and that is what he signed. Evidence of record shows that the applicant consulted with counsel on 25 June 1982 and that he acknowledged that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge. He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge. 2. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, 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 she failed to do so. 3. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 4. The applicant’s record of service included one nonjudicial punishment and 1047 days of lost time. As a result, his record of service was not satisfactory and 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 discharge or a general discharge. 5. Records show the applicant should have discovered the alleged injustice now under consideration on 3 August 1982; therefore, the time for the applicant to file a request for correction of any injustice expired on 2 August 1985. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING WC_____ _DL_____ _RV____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ___William Crain_____ CHAIRPERSON INDEX CASE ID AR20060016974 SUFFIX RECON DATE BOARDED 20070531 TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 19820803 DISCHARGE AUTHORITY AR 635-200 Chapter 10 DISCHARGE REASON For the good of the service BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 144.0000 2. 3. 4. 5. 6.