IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080007995 


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 be upgraded to honorable. 

2.  The applicant states, in effect, that he completed a three year tour of service and was given an honorable discharge.  He decided to reenlist in 1993 and was selected out of 100 applicants to represent Fort Carson on the Mounted Color Guard.  He was also awarded honor graduate and student first sergeant at the Primary Leadership Development Course; he attained the rank of corporal; and he was planning on attending flight school and had submitted his packet to the review board when he was accused of sexual assault.  His command pulled him from the Color Guard and he felt ostracized by his unit.  He contends the charges were eventually dropped because the victim kept changing her story and there was no evidence to support her claim because the sexual assault did not occur.  He states that his company did not offer to help him in any way and that they were reluctant to let him go back to the Color Guard.  When he checked on the status of his flight application he found out that his operations sergeant had contacted the board and had them put it on hold because he was accused of rape.  That was the last straw and he decided to quit the Army. 

3.  The applicant states that he was 28 years old at the time and very immature.  Since his discharge he has pursued a college education in anesthesiology.  If his discharge is upgraded he has considered enlisting as an anesthetist.

4.  The applicant provides no additional evidence 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 was born on 9 June 1966.  He enlisted on 13 February 1985, served as a military police, and was released from active duty on 12 February 1988.  He again enlisted on 25 February 1993.  His highest rank attained was corporal. 

3.  The applicant went absent without leave (AWOL) on 28 March 1994 and returned to military control on 23 April 1994.  He went AWOL again on 24 April 1994 and was apprehended on 14 June 1994.  On 29 June 1994, charges were preferred against the applicant for the AWOL periods.  

4.  On 29 June 1994, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated that he went AWOL due to personal problems.  

5.  On 11 July 1994, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.


6.  Accordingly, the applicant was discharged under other than honorable conditions on 15 July 1994 under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial.  He had served a total of 4 years, 1 month, and 84 days of active service with 79 days of lost time due to AWOL.

7.  On 11 January 2002, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.

8.  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 under other than honorable conditions is normally considered appropriate.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  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.  Although the applicant contends that he was very immature at the time of his discharge, he was 28 years old when he went AWOL and he had successfully completed one term of service and had over 4 years of active service. 

2.  Good post-service conduct and accomplishments are normally not a basis for upgrading a discharge.
 
3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.   

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Since the applicant’s record of service included 84 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable 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.



      _________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)                                         AR20080007995



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ABCMR Record of Proceedings (cont)                                         AR20080007995



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