IN THE CASE OF: BOARD DATE: 27 March 2012 DOCKET NUMBER: AR20110019334 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 a general discharge. 2. The applicant states: * he has been an upstanding citizen for the past 31 years * he was under extreme distress at the time as he was having marital problems * he spoke with his commander and the chaplain about getting a hardship discharge and they told him they could not help him * the only discharge available to him at the time was less than honorable * he had been in the service too long to be discharged as a trainee and his captain told him that a discharge under other than honorable conditions was all he qualified to receive * he was told to wait 10 years, then apply to the "board" for an upgrade * he was absent without leave (AWOL) twice for a total of 58 days * in the end, he turned himself in of his own accord 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 12 June 1979. He completed training as a radio operator. 3. On 21 November 1979, the applicant accepted nonjudicial punishment (NJP) for being AWOL from 29 October until 13 November 1979. 4. On 8 May 1980, the applicant was notified that charges were pending against him for the following offenses: * AWOL from 29 November 79 until 10 December 1979 * AWOL from 6 January 1980 until 10 January 1980 * AWOL from 16 January 1980 until 17 January 1980 * AWOL from 21 January 1980 until 7 May 1980 5. The sfacts and circumstances surrounding the applicant's discharge are not on file. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 23 June 1980 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. He completed 6 months and 15 days of net active service during this period. He accrued approximately 177 days of lost time due to AWOL and confinement. 6. A review of the available records fails to show the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge. 7. 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 3-7b states 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 passage of time is an insufficient justification for upgrading his discharge. His records show he accepted NJP for being AWOL and charges were pending against him for four additional AWOL offenses. Considering the seriousness of his offenses, it does not appear that the type of discharge he received was too severe. 3. As previously stated, the facts and circumstances surrounding the applicant's discharge are not on file. However, it is not the Army's policy to inform individuals when to apply for discharge upgrades. In the absence of evidence to the contrary, it must be presumed that the actions taken by the Army in his case were correct. 4. The type of discharge he received properly reflects his overall record of service. 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 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) AR20110019334 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110019334 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1