IN THE CASE OF:	  

	BOARD DATE:	  22 MAY 2008

	DOCKET NUMBER:  AR20080002772 


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 that his discharge be upgraded to a general discharge.

2.  The applicant states, in effect, he was 17 years old and immature when he enlisted.  He made mistakes and bad choices and decisions that led to his under other than honorable conditions discharge.  He states that he wasted a considerable amount of time using drugs and drinking alcohol after his discharge from the military.  He has changed his life and has not drank any alcoholic beverages or taken any drugs in 15 years and is now a responsible person.  His oldest daughter graduated from beauty school, he has a daughter in college, and his  youngest daughter is 18 years old.  He states he just moved into a new apartment and is planning to get married to his fiancée.  He is asking for a chance to better himself and to make a better life for his family.  He adds that he is HIV positive and they don't know how long he has left.

3.  The applicant provides a copy of DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) dated  
22 January 2008.

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 military personnel record shows he enlisted in the Regular Army on 15 February 1977.  He completed the necessary training and was awarded the military occupational specialty (MOS) 76W (Petroleum Supply Specialist).

3.  Between 10 January 1979 and 10 February 1981 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for disobeying a lawful order from two superior noncommissioned officers and for wrongful possession of marijuana. 

4.  On 6 January 1982, charges were preferred against the applicant for being absent without leave (AWOL) during the periods 19 May 1981 to 20 May  
1981 and 23 August 1981 to 4 January 1982.  On 8 January 1982, the applicant voluntarily requested discharge for the good of the service under the provision of Army Regulation 635-200 (Personnel Separation), Chapter 10.

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was advised that he may submit any statements he desires in his own behalf, which will accompany his request for discharge.  The applicant submitted a statement in his own behalf.
7.  In his statement, he stated, in effect, that while he was on leave traveling to Germany from Fort Lee, Virginia, he was told to return to Fort Dix, New Jersey.  As he was traveling to Fort Dix, New Jersey via a bus, he called home and found out that his sister was in the hospital.  He called the American Red Cross and he was told to call the Pentagon which in turn told him to call the American Red Cross to verify the information.  He was asked if he wanted to take leave but said he did not have enough leave, so they could not help him with his problem.  The applicant's cadre noted on the applicant's statement that the American Red Cross could not verify the information; therefore, the Army did not initiate any paperwork.

8.  On 12 January 1982, the applicant's commander forwarded his recommendation for separation to the approving authority.  In the commander's recommendation it was stated that the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation.

9.  On 20 January 1982, the appropriate authority approved the applicant's request and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Upon discharge the applicant was reduced to the lowest enlisted grade of private/pay grade E-1.

10.  On 2 February 1982, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 4 years, 7 months, and 1 day of Net Active Service This Period and that he accrued 140 days of time lost.

11.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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 to a general discharge.

2.  The evidence shows the applicant was AWOL from 19 May 1981 to 20 May  
1981 and 23 August 1981 to 4 January 1982.  As such, an under other than honorable conditions discharge was equitable and proper.

3.  The applicant's statement that he was 17 years old and immature when he enlisted; and made mistakes, bad choices, and decisions that led to his under other than honorable conditions discharge is noted.  However, his record shows he was nearly 20 years old at the time of enlistment.  He was 22 years old when he accepted his first NJP and he was 24 years old when he initially went AWOL.  

4.  Also noted, is that he has not drank any alcoholic beverages or taken any drugs in 15 years and is now a responsible person with a daughter that graduated from beauty school, a daughter in college, and his youngest daughter being 18 years old.  He just moved into a new apartment, and is planning to get married to his fiancée.  However, while his life experiences are commendable, his statement is insufficiently mitigating to warrant a change to a properly issued discharge.

5.  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 has failed to submit evidence that would satisfy that requirement.

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)                                         AR20080002772



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ABCMR Record of Proceedings (cont)                                         AR20080002772



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