IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080002850 


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 reconsideration of his earlier request for an upgrade of his discharge.

2.  The applicant states that he was unfairly treated.

3.  The applicant provides a self-authored letter, dated 11 February 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070002788, on 31 July 2007.

2.  The applicant submitted a self-authored letter, dated 11 February 2008, in which he presents a new argument, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show that he enlisted in the Regular Army for a period of 3 years on 16 June 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12F (Engineer Tracked Vehicle Crewman).  He was honorably discharged on 16 April 
1984 for the purpose of immediate reenlistment and reenlisted for a period of 6 years on 17 April 1984.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.

4.  In March 1986, the applicant tested positive for HIV.

5.  On 6 January 1987, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 5 February 1987.  He was apprehended by civil authorities and was returned to military control on 21 July 1990.

6.  On 1 August 1990, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about
6 January 1987 through on or about 21 July 1990.

7.  On 1 August 1990, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. 

8.  On 9 October 1990, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.  Accordingly, he was discharged under other than honorable conditions on 23 October 1990 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 5 years, 9 months, and 25 days of active service with 1,290 days of lost time due to being AWOL.

9.  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.

10.  In his self-authored statement, the applicant argues that he was not aware of the Army Discharge Review Board.  He further adds that he was a good Soldier at the beginning of his service and that he knows he made a mistake.  He also argues that upon his confinement, he was not told about his rights and that during his confinement, he did not receive any medical treatment for his HIV, although he felt he still had some Veterans Administration (VA) benefits.  He concludes by appealing to the Board to upgrade his discharge.

11.  Army Regulation 635-200 (Personnel Separations) 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.

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.  

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.

14.  Army Regulation 15-180 (Army Discharge Review Board) governs the actions and composition of the Army Discharge Review Board (ADRB) under Public Law 95–126; Title 10, United States Code (USC) Section 1553; and Department of Defense Directive 1332.28.  The ADRB reviews discharges of former Soldiers, except those given by reason of a sentence of a General Court Martial, or over 15 years since discharge.  The purpose of the review is to determine if the discharge was granted in a proper manner, i.e. in accordance with regulatory procedures in effect at the time, and that it was equitable, i.e. giving consideration to current policy, mitigating facts, and the total record. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant stated that he was not aware of the ADRB; however, Army Regulation 15-180 does not provide any provisions for a waiver of the ADRB's 15-year statue of limitations.  While it is unfortunate that the applicant was not aware of the ADRB, or its statute of limitations, as an available outlet for him to address his concerns and/or request a review his discharge, it does not change the fact that he is now barred from filing a petition for an upgrade with that Board. 



2.  Furthermore, the applicant contends that he was not told of his rights.  The applicant’s record shows he was charged with the commission of offenses 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, willingly, and in writing, requested discharge from the Army under such circumstances.  All requirements of law and regulation were met, and 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.  The applicant argues that he should have some VA benefits; however, his records show that subsequent to consulting with counsel and requesting his discharge for the good of the service, the applicant indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  

4.  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 that 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, the applicant is not entitled to either a general or an honorable discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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 to amend the decision of the ABCMR set forth in Docket Number AR20070002788, dated 31 July 2007.



								XXX
      _______________________
      	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)                                         AR20080002850



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ABCMR Record of Proceedings (cont)                                         AR20080002850



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