IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009486 


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 honorable with a corresponding change in his Separation Designator Code (SPD).

2.  The applicant states, in effect, that he was a good Soldier who did not deserve a less than honorable discharge.  He also contends that he is a good citizen who contributes to the good of his country. 

3.  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.  On 18 November 1985, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  He was discharged from the DEP and enlisted in the Regular Army on 16 January 1986 for 3 years.  He completed training requirements and was awarded military occupational specialty 19E (M48-M60 Armor Crewman).  He attained the grade of private first class/E-3.
 
3.  On 5 January 1987, the applicant departed in an absent without leave (AWOL) status, and remained so absent until he surrendered to military authorities on 31 March 1987.  In the Commander's Report of Inquiry into the applicant's AWOL, the unit commander indicated that at the time the applicant went AWOL, he was pending an Article 15 action for being absent from duty

4.  On 8 April 1987, the applicant was charged with AWOL.  On 8 April 1987, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  

5.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

6.  On 11 August 1987, the separating authority approved the applicant's discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, by reason of in lieu of trial by court-martial, with an under other than honorable conditions discharge.  

7.  On 26 September 1987, the applicant was separated with an under other than honorable conditions discharge after completing 1 year, 5 months and 14 days of creditable active service and 86 days of AWOL.  His DD Form 214 shows he was assigned an SPD of "KFS."  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter l0 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.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
9.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  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

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  A separation code of "KFS" applies to persons who are separated under the provisions of chapter 10, Army Regulation 635-200.  

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was a good Soldier who did not deserve a less than honorable discharge.

2.  The evidence of record shows that the applicant was pending Article 15 action for being absent from his unit when he departed AWOL for a period of 86 days.  AWOL is considered serious misconduct chargeable under the Uniform Code of Military Justice.  The applicant voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial when he was charged with this serious offense.  In doing so, the applicant admitted guilt to the stipulated or lesser- included offenses under the UCMJ.   




3.  The applicant's discharge was administratively correct and in conformance with applicable records.  There is no evidence of procedural errors that jeopardized his rights.  The character of the applicant's discharge is commensurate with his overall record of military service.  As such, the quality of his service was not consistent with the Army's standard for acceptable personal conduct and performance of duty by military personnel.  An under other than honorable conditions is normally appropriate for a Soldier discharged due to a lengthy period of AWOL, and the applicant provided no explanation for going AWOL or any evidence in mitigation of his misconduct.  
 
4.  The applicant's contention that he is a good citizen who contributes to the good of his country is noted.  However, he provided no evidence in support of this contention.  Further, a change in characterization of service is not normally warranted based on post-service conduct and/or accomplishments.

5.  The applicant's SPD code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  In this case, the applicant has failed to provide sufficient mitigation to warrant any change in his discharge and his narrative reason for discharge is fully supported in the record.  Therefore, the Board found no basis upon which to change the applicant's SPD code.

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.

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)                                         AR20080009486





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ABCMR Record of Proceedings (cont)                                         AR20080009486



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