IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080005391 


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 that he was young at the time and was going through some difficult times, including a bitter separation from his spouse; so, he made some bad choices.  However, he is now more mature and has been a model citizen. 

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 was born on 16 August 1965 and enlisted in the Regular Army for a period of 3 years, at age 18, on 8 August 1983. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95C (Correctional Specialist).  His records further show that he executed a 5-month extension on 12 January 1984 and a 
3-year reenlistment on 6 January 1987.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Army Achievement Medal (2nd Oak Leaf Cluster), the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Pistol 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 13 September 1985, the applicant departed his unit in an absent without leave (AWOL) status.  He returned to his unit on 2 October 1985.

5.  On 10 October 1985, the applicant pled guilty at a Summary Court-Martial to one specification of being AWOL during the period on or about 13 September 1985 through 2 October 1985.  The Court sentenced him to reduction to private (PV2)/E-2, a forfeiture of $100.00 pay for 1 month, and 30 days of restriction.  The sentence was adjudged on 10 October 1985 and approved on 17 October 1985.

6.  On 13 May 1986, the applicant was involuntarily reclassified into MOS 45T (Bradley Fighting System Turret Mechanic).  Accordingly, he completed advanced individual training and was subsequently awarded MOS 45T.  

7.  On 26 November 1988, the applicant was reported in an AWOL status and was subsequently dropped from the Army rolls on 27 November 1988.  He surrendered to military authorities and was returned to his unit on 12 January 1989.

8.  On 25 January 1989, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 26 November 1988 through 12 January 1989.





9.  On 25 January 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and 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).

10.  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. 

11.  On 22 March 1989, the applicant’s immediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 27 March 1989, 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 the lowest enlisted grade.  Accordingly, the applicant was discharged on 25 May 1989.  The DD Form 214 he was issued shows he was discharged for the good of the service, under the provisions of chapter 10 of Army Regulation 635-200, with a character of service of under other than honorable conditions.   This form further shows he completed 5 years, 9 months, and 13 days of creditable military service and had 66 days of lost time due to AWOL.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.






14.  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.

15.  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.

16.  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 of his enlistment and 23 years of age at the time of his offense.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The applicant’s records show 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 knowingly, willingly, and voluntarily 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 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 for correction of the records of the individual concerned.



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 _   _______   ______________
       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)                                         AR20080005391



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ABCMR Record of Proceedings (cont)                                         AR20080005391



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