RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080002009 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 an upgrade of his discharge.  

2.  The applicant states that an upgrade is necessary so he can receive Veterans Administration (VA) benefits.

3.  The applicant did not provide any additional documentary evidence in support of his application.  

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's records show that he enlisted in the Regular Army for a period of 3 years on 9 January 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

3.  The applicant's records show he was awarded the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge, with Rifle Bar (M-16); and the Marksman Marksmanship Qualification Badge, with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  On 11 January 1982, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls (DFR) on 9 February 1982.  He surrendered to civil authorities in Titusville, Florida, and returned to military control at Fort Bragg, North Carolina, on 30 March 1982.  

5.  On 31 March 1982, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 11 January 1982 through on or about 30 March 1982.  

6.  On 7 April 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service, in lieu of trial by court-martial, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

8.  On 15 April 1982, the applicant’s immediate commander interviewed the applicant and remarked that the applicant went AWOL because he was having personal problems and felt he needed to leave the military to handle those problems.  The immediate commander further remarked the applicant was emphatic in his statement that he had absolutely no desire to remain in the Army. In view of his attitude toward the military, and his lack of rehabilitative potential, the immediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.  

9.  On 28 April 1982, the applicant’s senior commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.  

10.  On 7 May 1982, the separation authority approved the applicant's request for discharge for the good of the service, in accordance with chapter 10 of Army Regulation 635-200, and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to private/E-1.  On 19 May 1982, the applicant was discharged accordingly.  
11.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200, with an Under Other Than Honorable Conditions Discharge character of service.  This form further shows he completed 1 year, 1 month, and 22 days of creditable military service and had 78 days of lost time due to AWOL.

12.  On 31 December 1984, the Army Discharge Review Board (ADRB) denied the applicant’s request for a discharge upgrade.  

13.  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.

14.  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.

15.  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 applicant contends that his discharge should be upgraded. 

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge, in lieu of trial by court-martial.  The applicant voluntarily, knowingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and it appears the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional VA representative to inquire about eligibility for and/or entitlements to VA benefits. 

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.




							RML
      ______________________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080002009



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508