IN THE CASE OF:	  

		BOARD DATE:	  7 October 2008

		DOCKET NUMBER:  AR20080008917 


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 discharge be upgraded from under other than honorable conditions to honorable.

2.  The applicant states, in effect, that he believes his discharge should be upgraded because he served faithfully for 23 months and due to his loyal service. 

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 military records show he enlisted in Regular Army, in pay grade E-1 on 20 October 1975, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 12B, Combat Engineer. He was advanced to pay grade E-3 on 7 December 1976. 

3.  On 2 May 1977, the applicant was reported absent without leave (AWOL).  He was returned to his unit on 4 May 1977.

4.  On 18 May 1977, the applicant was punished under Article 15, Uniform Code of Military Justice (UMCJ), for absenting himself from his unit from 2 to 4 May 1977.  His punishment included a reduction to pay grade E-1, a forfeiture of $200.00 pay for one month, and restriction and extra duty for 30 days.

5.  On 8 August 1977, the applicant was reported AWOL.  He was returned to his unit on 24 August 1977.

6.  On 17 July 1982, a Charge Sheet (DD Form 458) was prepared by the Commander, US Army Personnel Control Facility, Processing Detachment, Headquarters Command, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina.  The applicant was charged with one specification of AWOL from 6 December 1977 to 21 July 1982.

7.  On 28 July 1982, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that charges had been preferred against him under the Uniform Code of Military Justice, which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he was making the request of his own free will and had not been coerced whatsoever by any person.  He further acknowledged that he had been fully advised of his rights and that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veteran's Administration under both Federal and State law.  The applicant waived his rights and elected not to submit a statement in his own behalf.

8.  On 28 July 1982, the applicant’s unit commander stated, that in view of the applicant’s attitude toward the military and his lack of rehabilitative potential, he was recommending the applicant’s discharge under other than honorable conditions.  The unit commander also stated that the applicant had stated that he departed AWOL due to his inability to adjust to military life, the environment was too strict and disciplined, and that he just could not cope with that lifestyle. 

9.  On 9 August 1982, the applicant’s commander recommended approval of the applicant's request and recommended an Under Other Than Honorable Conditions Discharge Certificate be furnished.  

10.  On 22 September 1982, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1. 

11.  The applicant was discharged on 12 October 1982, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court-martial, and issued an Under Other Than Honorable Conditions Discharge Certificate.  He was credited with 2 years, 3 months, and 20 days total active service.  He was also credited with time lost after the normal expiration of his term of service, from 10 October 1978 to 20 July 1982, due to AWOL.

12.  The applicant's records are absent any evidence of awards for meritorious achievement or performance during his period of service.

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

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, 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.  An under other than honorable conditions discharge was normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.


16.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant’s contentions have been noted; however, based on the available evidence, there is no basis for the upgrade of his discharge to a fully honorable discharge.  It appears that the applicant resorted to short periods of AWOL and then a very lengthy period of AWOL as a means of addressing his problems.  The evidence also shows the applicant voluntarily requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a special court-martial to prove his innocence if he felt he was being wrongfully charged, wrongfully discharged, or that he was being treated unfairly.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge or even a general, under honorable conditions, discharge.  The applicant has submitted neither probative evidence nor a convincing argument to show that he is now deserving of a fully honorable discharge. 

3.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to being discharged.  The separation authority could have directed a general discharge if such a discharge were merited by the Soldier's overall record; however, the evidence shows the separation authority decided he did not merit a general discharge after considering the applicant's record and offense.

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a fully honorable discharge.  

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

6.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his under other than honorable conditions discharge.

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)                                         AR20080008917



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ABCMR Record of Proceedings (cont)                                         AR20080008917


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