IN THE CASE OF:	

		BOARD DATE:	  7 October 2008

		DOCKET NUMBER:  AR20080008996 


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 provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 February 1983, and an undated self-authored statement 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 17 November 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  His records also show he executed a 4-year reenlistment in the Regular Army on 30 June 1980.  The highest rank/grade the applicant attained during his military service was sergeant (SGT)/E-5.

3.  The applicant's records further show he was awarded the Army Service Ribbon, the Good Conduct Medal, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts or achievements during his military service.

4.  The applicant's record reveals a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 8 May 1981, for missing unit movement, on or about 20 April 1981.  His punishment consisted of 30 days of extra duty, a forfeiture of $300.00 pay per month for 2 months (suspended for 6 months), reduction to specialist four (SP4)/E-4, and a letter of reprimand;

	b.  on 26 October 1981, for absenting himself from his appointed place of duty from on or about 18 October 1981 through 19 October 1981, and for failing to obey a lawful order, on or about 17 October 1981.  His punishment consisted of a forfeiture of $75.00 pay, reduction to private first class (PFC)/E-3, and 14 days of extra duty; 

	c.  on 31 December 1981, for absenting himself from his appointed place of duty, on or about 21 December 1981.  His punishment consisted of 3 days of extra duty and reduction to PFC/E-3 (suspended for 60 days); 

	d.  on 12 May 1982, for absenting himself from his appointed place of duty, on or about 3 May 1982.  His punishment consisted of reduction to PFC/E-3, a forfeiture of $168.00 pay, and 14 days of extra duty; and

	e.  on 14 July 1982, for failing to go at the time prescribed to his appointed place of duty, on or about 23 June 1982.  His punishment consisted of reduction to the rank of PV2/E-2, a forfeiture of $149.00 pay for 1 month, and 14 days of extra duty.  

5.  The available evidence shows the applicant had a history of being AWOL.  He was AWOL from 2 - 6 July 1981, 20 - 21 April 1981, and from 23 - 25 March 1982.  On 3 August 1982, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 1 September 1982.  He remained in this status until he was apprehended by civil authorities in Chattanooga, Tennessee, on 7 January 1983, and returned to military control at Fort Stewart, Georgia, on 10 January 1983.

6.  On 20 January 1983, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 3 August 1982 until 10 January 1983.

7.  On 24 January 1983, 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 under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.

8.  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. 

9.  On 1 February 1983, 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’s conduct had rendered him triable by a court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  Based on his previous record, punishment was expected to have minimal rehabilitative effect. 

10.  On 1 February 1983, the applicant’s intermediate commander also recommended approval of the applicant’s discharge with an under other than honorable conditions discharge. 

11.  On 7 February 1983, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  On 28 February 1983, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge shows 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 4 years, 9 months, and 28 days of creditable active military service and he had 167 days of lost time.

12.  On 13 March 1987, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

13.  In his undated self-authored statement, the applicant recaps his experiences in the Army.  He states that he initially excelled in the Army and volunteered for military schools and tough assignments, executed a reenlistment, and earned his sergeant stripes.  However, upon reassignment to Fort Stewart, Georgia, he encountered marital problems which affected his performance.  He made some poor choices by going AWOL and ultimately lost his sergeant stripes.  He has regretted his poor choices but always felt proud of his military service.

14.  AR 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.

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

16.  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 the Soldier’s separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he 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.

2.  Based on his repeated record of indiscipline, that includes 5 instances of nonjudicial punishment and multiple instances of being AWOL, 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

__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)                                         AR20080008996



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ABCMR Record of Proceedings (cont)                                         AR20080008996



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