IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080008538 


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 an upgrade of his discharge. 

2.  The applicant states, in effect, that his discharge should be upgraded.  

3.  The applicant did not provide any additional documentary 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's records show that he enlisted in the Regular Army for a period of 3 years on 6 February 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade the applicant attained during his military service was private (PVT)/E-1.

3.  The applicant's records further show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  On 4 August 1980, the applicant departed his unit in an absent without leave (AWOL) status.  He remained in that status until he was apprehended by civil authorities and returned to military control on 3 September 1980. 

5.  On 4 September 1980, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 4 August 1980 until on or about 3 September 1980.  

6.  On 19 September 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

8.  On 26 September 1980, the applicant's immediate commander recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge.  The immediate commander remarked that the applicant was a substandard Soldier whose duty performance was far below the level established by his chain of command and his peers.  He was a detriment to the unit, lacking in motivation, desire, and personal conduct.  He required strict supervision that diverted the attention of his chain of command that could have been better implemented on more deserving Soldiers.  His attitude reflected an apathetic individual and it was best to deny him the right for continued service.

9.  On 29 September 1980, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an under other than honorable conditions discharge.  The intermediate commander further remarked that the applicant was a very immature individual who was firmly set on a course of nonproductive actions which were detrimental to himself and the unit.  He fully understood the impact which a discharge with an under other than honorable conditions might have had on his life; yet, he wanted to obtain a discharge even at that cost.  

10.  On 29 September 1980, the applicant’s senior commander recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge. 

11.  On 9 October 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 14 October 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge shows that he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 7 months and 7 days of creditable active military service and had 32 days of lost time due to AWOL.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

13.  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.



14.  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.

15.  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 contends that his discharge should be upgraded.

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

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.



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      _______ _   _______   ___
               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)                                         AR20080008538





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ABCMR Record of Proceedings (cont)                                         AR20080008538



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