IN THE CASE OF:	  

		BOARD DATE:	  21 OCTOBER 2008

		DOCKET NUMBER:  AR20080011568 

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 under other than honorable conditions discharge be upgraded. 

2.  The applicant states, in effect, he believes his discharge was inequitable because it was based on one isolated incident, he had served 28 months with no other adverse action.   

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 he enlisted in the Army Delayed Entry Program on 1 March 1988.  He enlisted in the Regular Army, in pay grade E-1, on 13 September 1988, for 4 years.  He completed basic and advanced training and was awarded military occupational specialty 73C, Finance Specialist.  He was advanced to pay grade E-2 on 13 September 1989.  

3.  On 6 April 1990, a Charge Sheet (DD Form 458) was prepared by the Commander, Personnel Control Facility, Headquarters Command, US Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma.  The applicant was charged with one specification of being absent without leave (AWOL) from 23 February to 27 March 1990.

4.  On 6 April 1990, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the VA (Department of Veteran Affairs).  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 23 April 1990, the applicant's unit commander and the Personnel Control Facility Commander recommended approval of the applicant's request and recommended the issuance of a discharge under other than honorable conditions.  The unit commander stated that the applicant had become disillusioned with the military and retention of the applicant was not in the best interest of the Army.

6.  On 27 April 1990, the Active Chief, Criminal Law Division, found no legal objection to the recommendation of the unit commander.

7.  On 30 April 1990, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1. 

8.  The applicant was discharged on 31 May 1990, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial, with his service characterized as under other than honorable conditions.  He was credited with 1 year, 5 months, and 14 days of total active service and he had lost time from 23 February to 26 March 1990 due to being AWOL.

9.  On 24 September 1993, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An under other than honorable conditions discharge was normally considered appropriate.  

11.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contention that his discharge should be upgraded has been considered.  However, the applicant was charged with one specification of being AWOL from 23 February to 27 March 1990.  Upon his return to military control, it appears that he voluntarily requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.

3.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge. 4.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.  

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.  

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080011568



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ABCMR Record of Proceedings (cont)                                         AR20080011568


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