IN THE CASE OF:	  

		BOARD DATE:	        09 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009391 


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 under other than honorable conditions discharge be upgraded to a general discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that he went absent without leave (AWOL) because his mother was having life or death surgery and he was denied leave.  She died and he lost his mind.  He was wrong for going AWOL, but he has been paying for his actions since his discharge.  He is currently incarcerated and will be released in November and it would help him put his life back together if his discharge were upgraded. 

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 16 January 1980, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 30 January 1980, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 19E (Armor Crewman).  He attained the grade of specialist four/E-4. 

3.  On 4 January 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful possession of marijuana.  His punishment consisted of a reduction to private/E-2, a forfeiture of $150.00 pay per month for 2 months, and 30 days of restriction and of extra duty.  

4.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official records.  His DD Form 214 shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), by reason of for the good of the service – in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was issued an Under Other Than Honorable Conditions Discharge Certificate.  He completed 2 years, 11 months and 17 days of active duty service and had 59 days of lost time due to AWOL.

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

6.  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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

7.  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 specific facts and circumstances leading to the applicant's discharge are not contained in the official record.  The only available evidence is the applicant's DD Form 214 showing he had 59 days of lost time due to being AWOL.  His record also shows he received an Article 15 for wrongful possession of marijuana. 

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  With this type of discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The specific charges against him are not in the available records.  Nevertheless, he would have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  In the absence of evidence to the contrary, regularity is presumed in the discharge process. 

3.  The applicant did not provide sufficient evidence supporting his reason for AWOL.  Although he contends his mother died and he lost his mind, he failed to provide any evidence supporting his contentions.  As such, his contentions alone are insufficiently mitigating to warrant a change in his discharge.

4.  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.

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.




      ___        XXX                ___
                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)                                         AR20080009391



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ABCMR Record of Proceedings (cont)                                         AR20080009391



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