IN THE CASE OF:	  

		BOARD DATE:	        09 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009590 


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.

2.  The applicant states, in effect, that he had prior honorable service which should be considered in his case.  He contends that his problems were a result of racism in his last command. 

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 5 July 1978, the applicant enlisted in the Regular Army for a period of
4 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 24C (HAWK Firing Section Mechanic).  On 29 December 1981, the applicant reenlisted for a period of 4 years.  He attained the grade of specialist five/E-5.  

3.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following 4 separate occasions for the offenses indicated:  1 July 1981, for assaulting a civilian by chocking and cutting her on the finger with a large knife; 11 January 1983, for failing to go to his place of duty; 5 May 1983, for disobeying a lawful order from a commissioned officer; and 9 July 1985, for failing to go to his appointed place of duty and disobeying a lawful order from a noncommissioned officer.

4.  On 6 October 1982, a summary court-martial convicted the applicant of
2 specifications of failing to go to his place of duty and disobeying a lawful order from a noncommissioned officer.  The resultant sentence included a reduction to private/E-2 and 14 days of extra duty and of restriction. 

5.  On 24 October 1982, a Bar to Reenlistment was imposed against the applicant.

6.  On 12 July 1983, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of misconduct – patterns of misconduct.  The commander indicated that he was initiating separation action because of the applicant's refusal to accomplish military duties and responsibilities expected of a Soldier.  He had NJP imposed against him on
4 occasions and was convicted by a summary court-martial.  Despite continued counseling, the applicant continued to show disregard for the rules and regulations that must be adhered to by all members of the Armed Forces and had become a disciplinary problem for the unit.

7.  On 16 August 1983, for unknown reasons, the applicant's elimination package was returned without action from the separation authority and no further elimination action was brought against the applicant.  

8.  On 24 October 1983, the applicant departed in an AWOL status and he remained absent until he returned to military control on 2 June 1985.

9.  On 12 June 1986, court-martial charges were preferred against the applicant for being AWOL from 24 October 1983 – 2 June 1985.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.

10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, furnished an Undesirable Discharge Certificate, 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 an undesirable discharge.

11.  The applicant submitted a statement in his own behalf indicating that he did not know why he went AWOL and that he could not give a reasonable answer to why he went AWOL.

12.  On 16 June 1986, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge.

13.  Accordingly, on 4 August 1986, the applicant was discharged with an under other than honorable conditions discharge under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He served 6 years, 5 months, and 21 days of active duty during the period under review, and he had 598 days of lost time due to being AWOL. 

14.  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.  However, at the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

15.  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.
16.  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.

17.  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 evidence of record shows the applicant received NJP on 4 separate occasions, was convicted by a summary court-martial, and was barred from reenlisting.  He also had 598 days of lost time due to being AWOL.  He indicated in a contemporaneous written statement that he could not give a reasonable response as to why he went AWOL.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

3.  The applicant was initially processed for elimination under the provisions of chapter 14, Army Regulation 635-200, by reason of a pattern of misconduct in July 1983, and for unknown reasons, his elimination packet was returned by the separation authority without action and he was allowed to remain in the Army.  Even when given another opportunity to improve his conduct, the applicant departed in an AWOL status and remained absent 598 days. 

4.  The applicant's contentions were noted; however, there is no evidence of racial discrimination in his record, and when given the opportunity to provide a written statement in his own behalf prior to his discharge, the applicant did not mention racial discrimination as the reason he went AWOL.  

5.  Given the above, the applicant provided insufficient evidence to mitigate his misconduct and his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service. 

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)                                         AR20080009590



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ABCMR Record of Proceedings (cont)                                         AR20080009590



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