IN THE CASE OF:	  

		BOARD DATE:	       13 August 2008

		DOCKET NUMBER:  AR20080010641 


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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states that he joined the Army when he was 19 years old.  At the time, he was living with his grandparents.  His grandfather told him he needed to join the Army or he would be kicked out of the house.  He was not able to make it on his own financially and reluctantly joined the Army.  Once he was in the Army he felt like he made a huge mistake.  He realizes now that he was very immature and had a very negative attitude at that time in his life.  He tried to make it work, but he did not like the lifestyle.  He is now 39 years old and wishes he had finished his commitment to the Army.  He tried to return to active duty in 2001, but his request was denied.  

3.  The applicant provides 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.  The applicant was born on 18 November 1968.  He enlisted in the U. S. Army Reserve (Delayed Entry) on 6 July 1988.  He enlisted in the Regular Army on     7 September 1988.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 10 May 1989, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from on or about 13 March to on or about 26 April 1989.

4.  On 10 May 1989, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) 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.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Department of Veterans Affairs benefits.  He submitted no statement in his own behalf.

5.  The applicant was placed on excess leave from 10 May 1989 through 15 May 1990.

6.  On 30 April 1990, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

7.  On 15 May 1990, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with a discharge UOTHC.  He had completed 1 year, 6 months, and 25 days of creditable active service and had 43 days of lost time.

8.  On 21 February 1997, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.  In July 2001, the applicant requested a personal hearing from the ADRB.  On 24 April 2002, the ADRB closed his case without prejudice after attempts to contact him telephonically and in writing were unsuccessful.

9.  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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant’s contentions have been carefully considered; however, they provide an insufficient basis upon which to grant the relief requested.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.



      _________xxxx_________
               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)                                         AR20080010641



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ABCMR Record of Proceedings (cont)                                         AR20080010641



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