IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080006694 


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

2.  The applicant states that he was forced out of the service.  

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 11 March 1980 for a period of three years.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 19E (M48-M60 armor crewman). He was advanced to private, E-2 on 11 September 1980.  
3.  On 29 September 1980, the applicant received a letter of reprimand for failure to exercise good judgment and a total disregard for his responsibilities as a Soldier to meet financial obligations.  

4.  On 28 October 1980, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice for being found asleep on his post, for failing to go to his appointed place of duty, and for wrongfully appearing at Guard Mount without his guard equipment.  

5.  On 15 January 1981, the applicant accepted nonjudicial punishment under Article 15 for leaving his appointed place of duty.  

6.  On 14 April 1981, charges were preferred against the applicant for being absent without leave (AWOL) from 21 January 1981 to 15 August 1983.  

7.  On 31 August 1983, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs (DVA) if an UOTHC discharge was issued.  He did not submit statements in his own behalf.

8.  On 29 September 1983, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 and directed issuance of an UOTHC Discharge Certificate.

9.  On 14 October 1983, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an UOTHC discharge.  He had completed 1 year and 8 days of creditable active military service with 936 days of lost time due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board 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 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 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, 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.

2.  The applicant was afforded the opportunity to submit statements at the time of his separation to explain his AWOL and he failed to do so.

3.  The applicant’s service record shows he received two Article 15s, a letter of reprimand, and was charged with being AWOL for over 900 days.  Therefore, his record of service is insufficiently meritorious to warrant an honorable discharge.

4.  The applicant’s statements are noted.  However, he has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.

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.



      ________xxxx__________
               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)                                         AR20080006694



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ABCMR Record of Proceedings (cont)                                         AR20080006694



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