IN THE CASE OF:	  

	BOARD DATE:	  3 July 2008

	DOCKET NUMBER:  AR20080006387 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states that there was no error in the discharge he received.  He went absent without leave (AWOL) due to pressure from the First Sergeant in charge of the Drill Sergeant School at Fort Jackson, SC.  He reenlisted to be a drill instructor and was accepted.  He went to the school, but he was dismissed with no reason given with two weeks left to graduation.  He started questioning why he was dismissed and heard that he was being investigated for fraud.  He was receiving basic allowance for quarters and his wife went to New York for a while, but he was still living off post.  He was scared.  He knew he was in the right, but he made the wrong decision to leave.  He tried to enlist when the Gulf wars started, but they did not want him.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 8 January 1979.  He was promoted to Sergeant, E-5 on 20 June 1981 in military occupational specialty 11B (Infantryman).  He last reenlisted on 26 March 1984 for 6 years.

3.  On 18 April 1984, while attending Drill Sergeant School, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 12 April 1984.  His punishment was a reduction to pay grade E-4 and a forfeiture of $100.00 pay per month for one month.  He appealed the punishment, but his appeal was denied on 25 May 1894.  

4.  On 8 April 1987, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 30 July 1984 to on or about     28 March 1987.

5.  On 31 March 1987, the applicant indicated that he did not desire a separation medical examination.

6.  On 8 April 1987, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf, but he had provided a statement during a Personnel Control Facility interview.

7.  During his interview, the applicant stated that he was confused at the time.  It took about 3 months to decide he was demoted in Drill Sergeant School for leaving his company area.  With about 3 days until graduation, there was a theft going on in his apartment.  He could not reach the school cadre, so he explained the reason to the charge of quarters and left.  He received the Article 15, 

appealed it, and his appeal was denied.  The problem continued to get worse.  He was being harassed by personnel in the company.  Finally, he was sent to a unit at Fort Jackson as a cadre. He had a female company commander who was pleased he was there.  The applicant’s statement goes on, but the continuation sheet to the interview is not available.  

8.  On 11 May 1987, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

9.  On 29 May 1987, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with a discharge UOTHC.  He had completed a total of 5 years, 8 months, and  23 days of creditable active service and had 820 days of lost time.

10.  There is no evidence of record to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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 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.  A discharge UOTHC is normally considered appropriate.  

12.  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.  

13.  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’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant’s attempt to serve his country when the Gulf wars started was admirable.  However, after considering his lengthy AWOL while he was an experienced Soldier and the other facts in the case, there is an insufficient basis that would warrant upgrading his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ____xx__  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.




 _   _____xxxxx______________
       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)                                         AR20080006387





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ABCMR Record of Proceedings (cont)                                         AR20080006387



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