IN THE CASE OF:	  

	BOARD DATE:   
	DOCKET NUMBER:  AR20080007457 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he desires to have his discharge upgraded so that he may be eligible for medical and educational benefits provided by the Department of Veterans Affairs (VA).  He admits to returning late from weekend pass twice, arriving late to Fort Bliss from basic training and advance individual training, and being absent without leave (AWOL) twice. 

3.  The applicant provides no additional documentation in support of his request.  
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 record shows he enlisted in the Regular Army on 11 January 1980.  He completed basic combat training at Fort Knox, Kentucky, and advanced individual training at Fort Bliss, Texas.  Upon completion of his training, the applicant was awarded the military occupational specialty (MOS) 19D, (Cavalry Scout).  

3.  The applicant’s records show that he had several periods of AWOL time.  

4.  Item 21 (Time Loss) of the applicant’s DA Form 2-1, Personnel Qualification Record, shows that he was AWOL from 3 July 1980 through 27 July 1980
(25 days); from 28 July 1980 through 30 July 1980 (civilian confinement, 3 days); from 29 December 1980 through 31 December 1980 (3 days); from 16 April 1981 through 14 May 1981 (29 days); and from 15 May 1981 through 29 June 1981
(46 days).  He had a total of 106 days of lost time due to AWOL.

5.  On 24 August 1980, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from his unit on or about 3 July 1980 to on or about 28 July 1980.  He received the imposed punishment of a forfeiture of $224.00 pay per month for a period of one month, extra duty for 45 days, and restriction for 45 days.  The applicant was advised that he may receive legal assistance in reference to the Article 15.  The applicant did not appeal this punishment.

6.  On 30 January 1981, the applicant was punished under the provisions of Article 15, UCMJ, for being AWOL from his unit from 29 December 1980 through 31 December 1980.  He received the imposed punishment of a forfeiture of $250.00 pay per month for 2 months (suspended for 180 days); a deduction to the grade of Private, pay grade E-1; and 45 days extra duty and restriction.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that on 10 August 1981, he was discharged, in the pay grade of E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial.  He was furnished an undesirable discharge, with his service characterized as under other than honorable conditions.  At the time of his discharge, the applicant served 1 year, 3 months, and 24 days of active service, with 106 days of lost time.




8.  There is no evidence that the applicant applied to the Army Discharge Review 
Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

9.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

10.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review. 

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The available evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service-in lieu of trial by court-martial.  In connection with such a discharge, the applicant 
was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted to being guilty to the stipulated offense(s) under the UCMJ.


4.  The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  The characterization of service for this type of discharge is normally under other than honorable conditions and it is presumed the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

5.  The applicant desires to have his under other than honorable conditions discharge upgraded to enable him to apply for VA compensation; however, the Board does not grant upgrades of discharges for the purposes of qualifying applicants for benefits administered by that agency.

6.  There is no evidence in the applicant's records, and the applicant has provided none, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

7.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.  

8.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20080007457



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ABCMR Record of Proceedings (cont)                                         AR20080007457


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