IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080004660 


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.

2.  The applicant states, in effect, that he was very young at the time and did not fully understand the implications of being absent without leave (AWOL).  However, he has grown since and realized the impact of his mistake, and is currently in need of medical care.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 January 1990.

	b.  Civilian medical records, dated on miscellaneous dates, showing his diagnosis of liver and pancreas disease.

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 was born on 14 December 1961 and enlisted in the Regular Army at the age of 18 for a period of 3 years on 2 April 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He also reenlisted for a period of 3 years on 29 March 1983.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show that he was awarded the Army Achievement Medal, the Good Conduct Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  On 12 April 1984, the applicant departed his unit in an AWOL status.  He surrendered and returned to his unit on 14 April 1984.

5.  On 18 January 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL on 17 December 1985.  His punishment consisted of reduction to private (PV2)/E-2 (suspended until 18 April 1986) and 14 days of extra duty.

6.  On 24 February 1986, Court-Martial charges were preferred against the applicant for one specification of wrongfully removing government property, on or about 31 December 1985; one specification of willfully damaging a control box assembly for a generator set by forming it into a smoking device, sometime during the month of January 1986; and one specification of stealing a Power Dyne Torque Wrench, of value of about $1,595.00, a sleeping bag, four magnesium batteries, and a control box assembly for a generator set, of a combined value of $100.00, on or about 31 December 1985.

7.  On 19 May 1986, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 29 May 1986.

8.  On 23 June 1986, additional Court-Martial charges were preferred against the applicant for one specification of being AWOL from on or about 19 May 1986 to an undetermined date.

9.  On 2 November 1989, the applicant surrendered to military authorities at Fort Leavenworth, Kansas, and was subsequently transferred to Fort Sill, Oklahoma, on 6 November 1989.

10.  On 8 November 1989, Court-Martial charges were preferred against the applicant for being AWOL during the period from on or about 19 May 1986 through on or about 2 November 1989.

11.  On 8 November 1989, 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 discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).

12.  On 4 December 1989, the applicant’s immediate commander recommended approval of the applicant’s request for discharge and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He further remarked that the applicant had become disillusioned with the military and that his retention was not in the best interests of the Army.

13.  On 7 December 1989, the Chief of Criminal Law Division, Fort Sill, Oklahoma, reviewed the applicant's request for discharge for the good of the service and stated that he had no legal objections to the unit commander's recommendations.

14.  On 8 December 1989, the separation authority approved the applicant's request for discharge and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to private (PVT)/E-1.  Accordingly, the applicant was discharged on 10 January 1990.  The DD Form 214 he was issued at the time confirms he was discharged under chapter 10 of Army Regulation 635-200 with a character of service of under other than honorable conditions.  This form further shows the applicant completed a total of 6 years, 3 months, and 24 days of creditable active military service with 1,263 days of lost time due to AWOL.

15.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

16.  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.

17.  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.

18.  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 evidence of record shows that the applicant was 18 years of age at the time he enlisted and 24 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age or lower who successfully completed military service.  Furthermore, the applicant’s unfortunate medical condition was noted.  However, there is no evidence in the available records and the applicant did not provide substantiating evidence that shows his record of indiscipline was the result of medical reasons.

3.  The evidence of record shows that the applicant 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 in lieu of 
trial by court-martial.  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.

4.  Based on his repeated 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.

5.  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.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the applicant's discharge is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief.

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 for correction of the records of the individual concerned.


								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)                                         AR20080004660



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ABCMR Record of Proceedings (cont)                                         AR20080004660



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