IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080008995 


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 to honorable.

2.  The applicant states, in effect, that he was told his under other than honorable conditions discharge would become a honorable discharge after 6 months.  He adds that there should be a copy of the correspondence from his Member of Congress (MOC) stating that he needed to be out of the service to care for his mom and dad.  He does not have a copy of the correspondence from his MOC.  Fort Knox, Kentucky kept the correspondence when he got out and his MOC is no longer alive.

3.  The applicant submitted no additional documentary evidence 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 records show he enlisted in the US Army Reserve on 8 May 1980.  On 25 June 1980, he enlisted in the Regular Army.  He completed his basic combat and advanced individual training and was awarded the military occupational specialty, 19D, Cavalry Scout.  After completing all required training, he was assigned to Fort Riley, Kansas, as his first duty station.

3.  The applicant’s records show the highest rank and pay grade that he held was Private First Class, E-3.  The record contains no documentary evidence of acts of valor, achievement, or service warranting special recognition.

4.  A DA Form 4187, Personnel Action that was prepared by the applicant's unit, Combat Support Company, 2nd Battalion, 63rd Armor, Fort Riley, on 7 October 1981, shows, he departed AWOL (absent without leave) on 5 October 1981.  A second DA Form 4187 shows he was dropped from the rolls of his organization on 4 November 1981.

5.  On 29 September 1983, a DA Form 4187 that was prepared by the Special Processing Company, US Army Personnel Control Facility, Fort Knox, Kentucky, shows the applicant surrendered to military authorities at Fort Knox on 27 September 1983.

6.  On 29 September 1983, court-martial charges were brought against the applicant for absenting himself without authority from his unit on 5 October 1981 and remaining so absent until 27 September 1983.

7.  The evidence of record shows that on 29 September 1983, the applicant consulted with counsel before submitting his request for discharge from the service.

8.  On 29 September 1983, the applicant requested discharge, under the provisions of Chapter 10, Army Regulation (AR) 635-200, for the good of the service, in lieu of trial by court-martial.

9.  In his application for discharge, the applicant elected not to submit a statement in his own behalf.  In his request, the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.
10.  The applicant stated he was making his request for discharge of his own free will and had not been subjected to coercion whatsoever by any person.  He added he had been advised of the implications that were attached to his request for discharge for the good of the service and that under no circumstances did he desire further rehabilitation to perform further military service.

11.  The applicant acknowledged that he understood that he could be discharged under other than honorable conditions and furnished a discharge under other than honorable conditions.  He stated he understood that as a result of such a discharge, he would be deprived of many or all benefits administered by the Veterans' Administration and that he may be deprived of rights and benefits as a veteran under both Federal and State law; and that he may encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

12.  The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service, in lieu of trial by court-martial, and recommended that he be discharged with a discharge under other than honorable conditions.

13.  The separation authority, a major general, approved the applicant's discharge on 21 October 1983 and directed that he be discharged with an under other than honorable conditions discharge.

14.  The applicant was discharged, on 9 November 1983, in the rank and pay grade, Private, E-1, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  The applicant's service was characterized as under other than honorable conditions and he was provided a corresponding discharge certificate.  By the date of his discharge, the applicant had completed 1 year, 4 months, and 23 days active duty service with 722 days time lost.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 
17.  AR 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.

18.  AR 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 separation specifically allows such characterization.

19.  In his application to the Board, the applicant asserts that he was told that his discharge would turn to honorable after six months.

20.  The applicant's records were reviewed in an attempt to locate the correspondence the applicant claims to have been written in his behalf by his MOC stating that he should be out of the service to care for his mom and dad.  A copy of the referred to correspondence was not found nor was there a copy of any action the applicant may have submitted seeking a compassionate reassignment or a hardship discharge.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. 

3.  After consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of Chapter 10, AR 635-200, for the good of the service, in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  There is no indication that the request was made under coercion or duress.

4.  The applicant’s voluntary request for separation, appears to have been administratively correct and in conformance with applicable regulations.  It further appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service, in lieu of trial be court-martial, at his request.  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.

6.  At the time of the applicant's discharge, the characterization of service for this type of discharge was normally under other than honorable conditions.  The evidence shows the applicant was aware of that prior to his requesting discharge.

7.  The applicant’s entire record of service was fully considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  The quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel, and as a result, the characterization of his service and the discharge he was issued were both proper and equitable.

8.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations and, contrary to the applicant's assertions that he was told that his discharge would be upgraded to an honorable discharge in six months, the Army does not have, nor has it ever had, a policy to automatically upgrade discharges.

9.  The applicant stated in his request to the Board that his MOC had written correspondence in his behalf stating that he should be out of the service to care for his mom and dad; however, this correspondence was not found in his service record.  Additionally, no other correspondence was found for any action the applicant may have initiated seeking a compassionate reassignment or a hardship discharge.  The applicant is advised that the Board is not an investigative agency and as such, it acts primarily upon evidence which is submitted by applicants to be Board in consideration of their requests.

10.  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 to a fully honorable 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)                                         AR20080008995



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ABCMR Record of Proceedings (cont)                                         AR20080008995



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