IN THE CASE OF:	  

		BOARD DATE:	        12 August 2008

		DOCKET NUMBER:  AR20080006417 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to an Honorable Discharge (HD) or General Discharge (GD) under honorable conditions.

2.  The applicant states he was young and took poor advice.  He states he served proudly and made one mistake, for which he is sorry.  He repeatedly sought to return to duty, but a sergeant told him to just take the UOTHC discharge.  Now, he wishes he had not taken it because, as a single parent, he would like to tell his daughter about his military service without having to delve into the reasons for an other than honorable conditions discharge.

3.  The applicant provides no additional documents.

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 was born on 28 April 1969 and enlisted in the Regular Army on 6 February 1990 at 20 years of age.  He received basic combat and advanced individual training at Fort Sill, OK and was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  He was assigned to Fort Drum, NY for his first duty station.

3.  The applicant departed his unit in an absent without leave (AWOL) status on 13 October 1990.  He was apprehended and returned to military control at Fort Ord, CA on 16 February 1991.  

4.  On 27 February 1991 the applicant was formally charged with the offense of AWOL.  On 28 February 1991, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In so doing, he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had he any desire for further military service.  He stated that he understood the nature and consequences of the UOTHC discharge that he might receive.  He declined to submit a statement in his own behalf.

5.  On 10 April 1991, the applicant's request for discharge was approved and the approving authority directed he receive an UOTHC discharge.  On 2 May 1991, he was separated with an UOTHC discharge.  He had 10 months and 22 days of creditable service and 126 days of lost time due to AWOL.

6.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.

7.  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.  A discharge under other than honorable conditions is normally considered appropriate.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade, stating he was young.

2.  The applicant was 20 years old when he enlisted; he was not young in terms of the age of most first-term Soldiers.  He went AWOL for 126 days and was apprehended and returned to military control.  He faced trial by a special court-martial empowered to impose a Bad Conduct or a Dishonorable Discharge.  Given the nature of the offense and the level of proof required for conviction, he was provided sound legal advice pertaining to the option of seeking a chapter 10 discharge.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  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.  There is no indication that the request was made under coercion or duress.

4.  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 this requirement.

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)                                         AR20080006417



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ABCMR Record of Proceedings (cont)                                         AR20080006417



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