RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060011220 


	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. Kenneth Wright

Chairperson

Mr. Chester Damian

Member

Ms. Ernestine Fields

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 his past military record and decorations show he served his country honorably.  He also states that he believes his discharge should be upgraded for the following reasons:  (1)  his record of promotions show he was generally a good service member; (2) he received awards and decorations in his enlistment; and (3) he had a prior honorable discharge.  He also states he went absent without leave (AWOL) because of a hardship at home (mother’s financial problems).  He further states that since his discharge he has been steadily employed, that he has three children, and that he is a law abiding citizen. 

3.  The applicant provides two character reference letters and three work performance evaluations. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 11 August 1988.  The application submitted in this case is dated 21 March 2006; however, the application was received in this office on 11 August 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 31 July 1980, served as a multi-channel communications equipment operator, and was released from active duty on 
29 July 1983.  On 3 December 1987, the applicant enlisted for a period of 4 years.  

4.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant’s DD Form 214 for the period ending 11 August 1988 shows that he was discharged under other than honorable conditions on 11 August 1988 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 3 years, 5 months, and 16 days of creditable active service with 82 days of lost time due to AWOL.

5.  There is no evidence in the available records which shows the applicant requested a hardship discharge prior to his discharge.

6.  The applicant provided two reference letters from his mother and a friend.  His friend attests that the applicant is a good man, honest, loyal, and reliable.  His mother states that in March 1988 when the applicant came home on leave she was having a hard time with the bills and making ends meet.   

7.  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.

8.  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.

9.  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.  

10.  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.  Family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 11 August 1988; therefore, the time for the applicant to file a request for correction of any injustice expired on 10 August 1991.  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

KW____  __CD___  __EF____  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.



__Kenneth Wright______
          CHAIRPERSON




INDEX

CASE ID
AR20060011220
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19880811
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.