IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080005988 


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, at the time, he used all his leave to attend to his ill father and that when his father was on his death bed, his immediate commander told him to go to his father's funeral.  However, on the day of the funeral, the local police arrested him and his brother and subsequently released them to military control. 

3.  The applicant provided a copy of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 6 October 1981, 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 enlisted in the Regular Army for a period of 3 years on 15 July 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  On 3 March 1981, the applicant departed his unit in an absent without leave (AWOL) status.  He returned to military control on 8 March 1981.  However, on 
2 April 1981, he departed his unit in an AWOL status again, and was subsequently dropped from the Army rolls on 2 May 1981.  He was apprehended by civil authorities in Colesburg, Kentucky, and was returned to military control on 16 August 1981.

5.  On 19 August 1981, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 2 April 1981 through on or about 16 August 1981.

6.  On 21 August 1981, 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).

7.  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. 

8.  In a statement submitted by the applicant along with his request for discharge he did not mention his father’s illness or death.  He stated, “reason for getting out is more money.” 
9.  On 1 September 1981, the applicant’s immediate commander remarked that the applicant's conduct rendered him triable by court-martial under circumstances that could have led to a bad conduct or dishonorable discharge.  He further stated that based on the applicant's previous record, punishment was expected to have minimal rehabilitative efforts.  The immediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.  

10.  On 1 September 1981, the applicant’s intermediate commander also recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.  

11.  On 9 September 1981, 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 private/E-1.  Accordingly, the applicant was discharged on 6 October 1981.  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 10 months, and 3 days of creditable military service and had 140 days of lost time due to AWOL.

12.  On 11 May 1988, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.  

13.  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.

14.  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.

15.  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 illness and unfortunate death of the applicant's father were noted.  However, there is no evidence in the available record and the applicant did not provide substantiating evidence that shows his offense was the result of his father's illness and/or death. 

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.


							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)                                         AR20080005988



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ABCMR Record of Proceedings (cont)                                         AR20080005988



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