IN THE CASE OF:	  

		BOARD DATE:	        28 October 2008

		DOCKET NUMBER:  AR20080011001 


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.

2.  The applicant states, in effect, that it has been 20 years since his discharge and he has changed drastically.  He does not feel that his discharge should be held against him for the rest of his life.  He contends that he did give 2 years of good service before his adolescent mind contributed to some bad decision making. 

3.  The applicant provides a statement of support, dated 13 June 2008, 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.  On 27 March 1984, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  He was 18 years old when he enlisted.  On
23 April 1984, 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 88M (Motor Transportation Operator).  

3.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following 4 separate occasions for the offenses indicated:  24 September 1985, for 2 specifications of failing to go at the time prescribed to his appointed place of duty; 9 December 1985, for 3 specifications of failing to go at the time prescribed to his appointed place of duty; 3 February 1986 for being absent without leave (AWOL) from
16-17 December 1985 and for failing to go at the time prescribed to his appointed place of duty; and 28 February 1986, for being AWOL for 1 day.

4.  The applicant was AWOL from 6 – 27 January 1986, and from 1 April 1986 – 20 August 1987.  He was apprehended by civil authorities.

5.  On 26 August 1987, the applicant was charged with the above 2 periods of AWOL.  On 27 August 1987, 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.

6.  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.  

7.  On 24 December 1987, 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 11 February 1988 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He was credited with 2 years, 4 months, and 6 days of total active service.  He had 530 days of lost time due to AWOL. 

9.  The applicant provided a supporting statement from his sister-in-law who indicates that she has known the applicant since he was 3 years old.  She states that he has matured significantly since he left the Army, that he is reliable, emotionally stable, a tireless worker, cheerful, dedicated to his family, and has a giving and kind heart.

10.  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 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.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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.

13.  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 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.  The Board found no evidence of arbitrary or capricious actions by 
the command.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant went AWOL on 3 separate occasions and had 530 days of lost time due to AWOL.  In addition, he received 4 Article 15s for AWOL and failing to go at the time prescribed to his appointed place of duty on numerous occasions.  He was 18 years old when he enlisted.  The applicant's contention regarding his adolescence was noted; however, he met entrance qualification standards to include age, and his father consented to his enlistment.  There is no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

3.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant has not provided sufficient mitigating evidence to warrant a change in his type of discharge.   Therefore, there is no justification to upgrade his discharge to an honorable or general discharge.

4.  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

___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.


															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)                                         AR20080011001



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ABCMR Record of Proceedings (cont)                                         AR20080011001



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