IN THE CASE OF:	  

		BOARD DATE:	  12 August 2008

		DOCKET NUMBER:  AR20080006306 


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 general discharge (applicant's discharge is actually characterized as under other than honorable conditions) be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was a good Soldier and he liked the Army.  He states he became depressed when his sister was put in a foster home because his mother was placed in a mental hospital.  He states he found the Army was totally against his nature because he didn't like weapons or any type of violence.  He further states he decided that if he went absent without leave (AWOL) the Army would put him out faster.  He states he served for 1 and a half years and now after 17 years, he asks to be considered for an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 6 February 1991 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 military personnel record shows he enlisted in the Regular Army on 31 May 1989 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 88M (Motor Transport Operator).

3.  On 17 October 1989, the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 8th Infantry at Fort Carson, Colorado.

4.  On 15 June 1990, the applicant went AWOL and he was dropped from the rolls on 15 July 1990.  He was apprehended by civilian authorities and returned to military control on 18 November 1990.

5.  On 27 November 1990, court-martial charges were preferred against the applicant for being AWOL during the period from 15 June 1990 to 18 November 1990.

6.  On 28 November 1990, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he was charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

7.  On 29 January 1991, the appropriate authority approved the applicant's request for discharge for the good of the service.  The appropriate authority directed that the applicant be reduced to private/pay grade E-1 and that he be furnished a discharge under other than honorable conditions.

8.  On 6 February 1991 the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service - in lieu of court-martial.  He had completed 1 year, 3 months, and 
3 days of active service that was characterized as under other than honorable conditions.  He had 153 days of time lost.

9.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be considered for an honorable discharge because it has been 17 years since his discharge.

2.  The ABCMR does not upgrade discharges based solely on the passage of time.

3.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.  

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that 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)                                         AR20080006306





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ABCMR Record of Proceedings (cont)                                         AR20080006306



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