IN THE CASE OF:	

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080010981 


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, his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that at the time of his discharge from the military the chaplain did not explain how to fill out the paperwork.  He states that the chaplain told him after 6 months his discharge would become honorable.  He states that since he has always worked and had insurance he never needed veterans aid.  

3.  The applicant provides a copy of a letter from the Department of Veterans Affairs (DVA), Regional Office, Newark, New Jersey, dated 13 March 2008.

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 personnel record shows he enlisted in the Regular Army on 23 May 1980.  He completed the necessary training and was awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  On 27 May 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 11 May 1981 to 12 May 1981 and for disobeying a lawful order from a superior noncommissioned officer.

4.  A DA Form 4187 (Personnel Action), dated 23 July 1981 shows that the applicant was AWOL from 19 June 1981 and was dropped from the rolls of the Army on 24 July 1981.

5.  A DA Form 3836 (Notice of Return of U.S. Army member from Unauthorized Absence), dated 22 December 1983 shows the applicant surrendered to military control at Fort Dix, New Jersey on 19 December 1983.

6.  Item 29 (Dates of Time Lost During This Period) of the applicant’s DD Form 214 shows he was AWOL from 19 June 1981 to 18 December 1983, for a total of 913 days of lost time.

7.  The applicant's discharge packet was not included in his records.  However, the DD Form 214 he was issued shows he received an under other than honorable conditions discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 10 on 1 February 1984.  He had completed a total of 4 years, 2 months, and 9 days of net active service this period and he had accrued 913 days of lost time.

8.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  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.

10.  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 requests that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The evidence shows that the applicant accepted NJP for being AWOL from 
11 May to 12 May 1981 and for disobeying a lawful order from a superior noncommissioned officer.  The applicant was also AWOL from 19 June 1981 to  
18 December 1983.

3.  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.  The extensive length of his AWOL renders his service unsatisfactory. Therefore, he is not entitled to an honorable discharge.

4.  The applicant's contentions were considered.  However, there is no evidence to show that a chaplain failed to explain to the applicant how to fill out paper work or that the chaplain told the applicant his discharge would be upgraded to an honorable discharge after 6 months.  

5.  Although the applicant's separation package was not available, in order for him to have been discharged under the provisions of Army Regulation 635-200, Chapter 10, charges would have been preferred against him for an offense for which the authorized punishment includes a punitive discharge.  The applicant would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted he was guilty of the offenses he was charged with, and acknowledged that he could receive a discharge under other than honorable conditions.


6.  The applicant states that he was led to believe his discharge would be upgraded after 6 months was considered.  The Army does not have, nor has it ever had, a policy to automatically upgrade a discharge or to accept a request for the upgrade of a discharge after a certain amount of time.  Each case is decided on its own merits when an applicant submits a DD Form 149 (Application for Correction of Military Record) requesting a change in discharge.  Changes may be warranted if the evidence supports that the characterization of service or the reason(s) for discharge, or both, were improper or inequitable.  The applicant has provided no evidence to support either.

7.  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 has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  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.




      _______ _   X_______   ___
               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)                                         AR20080010981



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ABCMR Record of Proceedings (cont)                                         AR20080010981



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