IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080004845 


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, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be changed to a discharge that would enable him to receive Veteran’s benefits and would possibly allow him reentry in the military service.

2.  The applicant states, in effect, that his discharge characterized as UOTHC was not an error.  He states he has changed his life and it was his understanding that he was going to get a general discharge.  He also states that he has learned the error of his actions.    

3.  The applicant provides a copy of a certificate from the Salvation Army, dated 24 December 2006, showing that he completed the Salvation Army Adult Rehabilitation program.  

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 he enlisted in the Army Reserve on 3 May 1989. He was discharged from the Army Reserve and enlisted in the Regular Army on 23 May 1989.  He completed basic training at Fort Jackson, South Carolina, and advanced individual training at Fort Gordon, Georgia.  Upon completion of his training, he was awarded the military occupational specialty 31L, Wire Systems Installer.  

3.  Item 21, of the applicant's DA Form 2-1 (Enlisted Qualification Record), shows that he was AWOL from 23 July 1990 to 13 August 1990, from 10 September 1990 to 21 September 1990, from 18 October 1990 to 21 October 1990, and from 10 May 1991 to 14 August 1991.

4.  Charges were preferred against the applicant on 23 August 1991 for being AWOL from 10 May 1991 to 15 August 1991.

5.  On 23 August 1991, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) if an UOTHC discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf.  

6.   On 9 September 1991, the separation authority approved the applicant's request for discharge and recommended that he be furnished a discharge characterized as UOTHC.  

7.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

8.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An UOTHC discharge was normally considered appropriate.  

9.  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.

10.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had established a pattern of misconduct.  He went AWOL on four occasions and charges were preferred against him for the last period of AWOL.  He accumulated a total of 135 days of time lost due to AWOL.  

2.  The applicant's voluntary request for separation, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, appears to have been administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress. 

3.  The applicant has not provided evidence to show that his discharge was unjust.  In fact, in his request addressed to the Board, he indicates there was no error in his discharge but believed he would receive a general discharge.  There is no evidence to show a general discharge was ever offered the applicant.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant's rehabilitation certificate was taken into consideration; however, it does not support a change to his discharge characterized as UOTHC. 
In addition, it appears that the applicant developed an addiction post-service.  There is no indication in his records that drugs or alcohol played a part in his repeatedly going AWOL.  It is noted that the applicant was discharged in September 1991 and he completed the rehabilitation training in December 2006.
 
5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge characterized as UOTHC.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

6.  The applicant was furnished a discharge, with his service characterized as UOTHC.  He had a total of 1 year, 11 months and 18 days of creditable service and 135 days of time lost due to being AWOL.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this 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)                                         AR20080004845



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ABCMR Record of Proceedings (cont)                                         AR20080004845



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