IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080010611 


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 an upgrade of his discharge. 

2.  The applicant states that he was a young and immature at the time.  Additionally, he was having problems at home where his mother in law and his wife were always fighting and his wife had no place to live with their newborn.  He tried unsuccessfully to get an extension of his leave and ended up being absent without leave (AWOL).  It has now been over 25 years since he was discharged and he is still reliving his past.    

3.  The applicant did not provide any additional documentary evidence in support of his 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 records show that he was born on 20 March 1958 and enlisted in the U.S. Army Reserve (USAR) at the age of 17 years and 6 months for a period of 6 years on 15 September 1975.  He subsequently entered active duty for training (ADT) on 3 October 1976, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  He was honorably released from ADT and returned to the control of the USAR on 10 February 1977.  The highest rank/grade the applicant attained was private (PV2)/E-2.

3.  The applicant’s awards and decorations include the Marksman Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts during this period of military service.

4.  The applicant’s records further show he enlisted in the Regular Army at the age of 21 for a period of 4 years on 19 June 1979.  He was subsequently ordered to report to the 5th Replacement Company, Fort Polk, Louisiana, on 20 June 1979; however, he did not show up.

5.  On 20 June 1979, the applicant was reported AWOL and on 20 July 1979, he was dropped from the Army rolls.  He remained in that status until he was apprehended by civil authorities in Yazoo City, Mississippi, on 14 February 1980. He was ultimately returned to military control at Fort Rucker, Alabama, on 19 February 1980.

6.  On 11 March 1980, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 21 June 1979 through on or about 14 February 1980.

7.  On 13 March 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).




8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

9.  On 13 March 1980, the applicant was personally interviewed by the unit commander during which the applicant stated that he desired to be at home.  He further stated that after his enlistment in the Regular Army and on the day he was supposed to depart, his wife started crying and that upon his arrival at Fort Polk, he started thinking about her, so he returned home to be with his wife.  He also stated he had no desire to be in the Army and if required, he would go AWOL again to be with his wife.  The unit commander recommended approval of the applicant’s request for discharge with an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 13 March 1980, the applicant’s intermediate commander also recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 3 April 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200.  He ordered the applicant’s immediate reduction to the lowest enlisted grade and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 14 April 1980, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with an under other than honorable conditions character of service.  This form further confirms the applicant had completed a total of 1 month and 26 days of creditable active military service and had 238 days of lost time due to AWOL. 

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.





13.  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 discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 applicant contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant was 21 years of age at the time of his enlistment in the Regular Army and his AWOL offense.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant did not provide sufficient evidence that shows his act of misconduct was the result of his age.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  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 evidence that would satisfy that requirement.  Based on his 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, the applicant is not entitled to either a general or an honorable 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.



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               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)                                         AR20080010611



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ABCMR Record of Proceedings (cont)                                         AR20080010611



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