IN THE CASE OF: BOARD DATE: 14 September 2010 DOCKET NUMBER: AR20100011694 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 under other than honorable conditions discharge. 2. The applicant states he requests an upgrade of his discharge so that he may pursue better employment opportunities. 3. The applicant provides no additional documentary evidence in support of his request. 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 Army National Guard of the United States and California Army National Guard for a period of 6 years on 14 March 1975. 3. A DD Form 214 (Report of Separation from Active Duty) shows the applicant entered active duty for training on 29 August 1975, he completed military occupational specialty 31B (Field Radio Mechanic) training, and was honorably released from training to the control of his unit on 28 February 1976. At the time he had completed 6 months of active service. 4. An National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant was discharged from the California Army National Guard under honorable conditions on 29 May 1979. At the time he had completed 4 years, 2 months, and 16 days of net service. 5. On 30 May 1979, the applicant was involuntarily ordered to active duty for a period of 16 months and 15 days. 6. On 17 July 1979, charges were preferred against the applicant under Article 86, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 30 May 1979 to 16 July 1979. 7. On 6 August 1979, the applicant consulted with legal counsel and voluntarily requested a 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. The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge. a. He was afforded the opportunity to consult with counsel. He was fully advised of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty. b. He was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. c. He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge. The applicant indicated that statements in his own behalf were not submitted with his request. 8. The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a character of service of under other than honorable conditions. 9. On 22 August 1979, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions. 10. The applicant's DD Form 214 shows he was discharged on 6 September 1979 in accordance with Army Regulation 635-200, chapter 10, for the good of the service with service characterized as under other than honorable conditions. At the time he had completed 1 month and 15 days of net active service. a. Item 21 (Time Lost) and item 27 (Remarks) show the applicant had 47 days of lost time under Title 10, U.S. Code, section 972. b. Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 11. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. This regulation 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. 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 applicant contends his under other than honorable conditions discharge should be upgraded because he would like to pursue better employment opportunities. 2. The applicant's 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 voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Moreover, the offense that led to his discharge far outweighs his overall record. Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable. 3. Records show the applicant was AWOL for a total of 47 days (i.e., 1 month and 17 days) and he completed only 1 month and 15 days of his 16-month and 15-day active duty obligation. Thus, the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge. In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to an honorable or a general discharge. 4. The ABCMR does not upgrade an individual's discharge solely to enhance his or her opportunity for employment. 5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Therefore, there is no basis for granting the applicant's request. 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) AR20100011694 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100011694 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1