IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009656 


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, in effect, that his discharge under other than honorable conditions be upgraded to an honorable or general discharge. 

2.  The applicant essentially states that he went absent without leave (AWOL) while he was on leave because his mother had medical problems and could not move because of swollen knees, and that there was no one there to take care of her.  He also states, in effect, that he wishes to have his discharge changed to an honorable or general discharge in order to receive better veteran's benefits and better employment.  He further states that 25 years ago, documents might not have existed for his mother named P________ C_____.  

3.  The applicant provides no additional 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.  The applicant's military records show that he enlisted in the Regular Army on 16 July 1980.  He completed initial entry training and was awarded military occupational specialty 11B (Infantryman).  He was then reassigned to Fort Riley, Kansas for his initial permanent duty assignment.

3.  On 23 January 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 22 January 1981.  His punishment consisted of forfeiture of $75.00 pay and 7 days of correctional custody.  

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in part, that the applicant went AWOL on 1 December 1980, and that he remained in this status until he returned to military control on 4 December 1980.

5.  On 28 May 1981, the applicant again went AWOL.  On 29 June 1981, he was dropped from the rolls of the Army and classified a deserter.  He remained in this status until he returned to military control on 24 November 1981.

6.  On 30 November 1981, the applicant was informed that charges had been preferred against him for absenting himself without authority from his unit on or about 28 May 1981, and remaining so absent until on or about 24 November 1981; an offense punishable under the UCMJ with a punitive discharge.

7.  On 2 December 1981, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

8.  In his request for discharge, the applicant acknowledged that he consulted with counsel, who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

9.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [now named the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  He also acknowledged that historically, the percentage of discharges upgraded by the Army Discharge Review Board (ADRB) or the ABCMR was very low.  The applicant elected to submit a statement in his own behalf.  

10.  In his personal statement in support of his request for discharge, the applicant essentially stated that he deserted because his mother was sick and that he wanted to take care of her, and that nothing would have prevented him from committing his offense.

11.  On 3 December 1981, a mental status evaluation was conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command.

12.  Although the applicant's commanding officer and next higher commander recommended that the applicant be issued a general discharge, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also essentially directed that the applicant be reduced in rank to private/E-1.  On 10 February 1982, the applicant was discharged accordingly.

13.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

14.  The applicant essentially stated that he went AWOL while he was on leave because his mother had medical problems and could not move because of swollen knees, and that there was no one there to take care of her.  He also stated, in effect, that he wishes to have his discharge changed to an honorable or general discharge in order to receive better veteran's benefits and better employment.  He further stated that 25 years ago, documents might not have existed for his mother named P________ C_____.  

15.  The applicant military records essentially show that his mother's first name was N_____, not P________.

16.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

17.  Army Regulation 635-200 has consistently provided provisions for separation of Soldiers due to hardship.  Hardship exists when in circumstances not involving death or disability of a member of an enlisted person's family, his or her separation from the Service will materially affect the care or support of his or her family by alleviating undue and genuine hardship.  Separation from the Service of enlisted personnel because of hardship must be requested in writing, and supporting evidence for an application for separation because of hardship will be in affidavit form, and must substantiate the hardship conditions on which the application for separation is based.  

18.  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.

19.  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.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable or general discharge. 

2.  The evidence provided by the applicant was carefully considered.  However, in order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

3.  The applicant's contention that he went AWOL while he was on leave because his mother had medical problems and could not move because of swollen knees, and that there was no one there to take care of her was noted.  However, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which conclusively corroborates his mother's medical situation at the time.  There is also no evidence that he sought assistance from his chain of command or any external agencies such as the American Red Cross with any family problems he was having at the time.  If the applicant did in fact have a legitimate reason for requesting a hardship discharge, it is likely that his chain of command, had they been properly apprised of such a situation, would have assisted the applicant in gathering the necessary documentation in order for him to submit a formal request for hardship discharge.  
4.  The fact that the applicant wishes to have his discharge changed to an honorable or general discharge in order to receive better veteran's benefits and better employment was also noted.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits or improving employment prospects.

5.  The fact that the applicant stated that 25 years ago, documents might not have existed for his mother named P________ C_____ was also noted.  However, as the applicant's military records show that his mother's first name was N_____ and not P________, it is unclear what the applicant is referring to.

6.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

7.  The applicant's record of service shows that he accepted NJP under Article 15 of the UCMJ, briefly went AWOL in December 1980, and later went AWOL and was subsequently dropped from the rolls of the Army and classified as a deserter for which he was pending a trial by court-martial for.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.

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)                                         AR20080009656



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ABCMR Record of Proceedings (cont)                                         AR20080009656



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