IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080009614 


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 an honorable discharge.

2.  The applicant states, in effect, that he made a mistake by going absent without leave (AWOL).  He contends that he wanted to get married and did not want to go to Korea at the time. 

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 23 September 1978, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 6 years.  On 29 September 1978, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed training requirements and was awarded military occupational specialty 19E (Armor Crewman). 
 
3.  On 31 March 1980, the applicant departed his unit in AWOL status and remained so absent until 28 July 1980 when he was apprehended by civil authorities in Fort Payne, Alabama.

4.  On 11 August 1980, the applicant was charged with AWOL from 31 March – 28 July 1980.  

5.  On 13 August 1980, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  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.  

6.  The applicant submitted a statement in his own behalf indicating that he joined the Army after he broke up with his fiancée to get away from her.  He stated that he could not cope with the military lifestyle and that he could not live and work with blacks.  He also stated that he wanted to stay and help his grandmother who was disabled.

7.  On 10 September 1980, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge. 

8.  Accordingly, the applicant was discharged on 21 October 1980 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He was credited with 1 year, 8 months and 25 days of total active service and had 120 days of lost time due to AWOL.  

9.  Army Regulation 635-200 (Enlisted Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment included 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. An Undesirable Discharge was normally considered appropriate for this type of discharge.

10.  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.

11.  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.

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 evidence of record shows the applicant was AWOL for 120 days and was apprehended by civil authorities.  

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.  At the time the applicant voluntarily submitted his request for discharge in lieu of trial by court-martial, he provided a written statement indicating that he had broken up with his fiancée before he enlisted in the Army, and that he went AWOL because he could not adjust to military life, he could not live and work with blacks, and he wanted to help his grandmother who was disabled.  There is no 
evidence to support his contention that he went AWOL because he wanted to get married.  Even if true, his desire to get married does not mitigate the serious misconduct he committed. 

4.  Given the above, the applicant has not submitted evidence of sufficient merit to refute the type and nature of his discharge.  As such, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  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)                                         AR20080009614



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ABCMR Record of Proceedings (cont)                                         AR20080009614



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