IN THE CASE OF:	

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080011590 


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 be upgraded.

2.  The applicant states that he was under extreme emotional and mental stress at the time of his discharge.  It was supposed to become an honorable discharge after two years.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and four letters of support (one dated 1 June 2008, one dated 4 June 2008, one dated 6 June 2008, and one dated 11 June 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 enlisted in the Regular Army on 8 July 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator).

3.  On 22 October 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from on or about 10 October to on or about 21 October 1980.

4.  A DD Form 1172 (Application for Uniformed Services Identification and Privilege Card) shows the applicant married on 12 January 1981.

5.  On 5 April 1982, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to stay awake while performing duties as charge of quarters.

6.  On 23 August 1982, the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for hashish, THC (marijuana), and cocaine use.  On 18 October 1982, he was released from the program after being given a compassionate reassignment.  A progress report could not be made.

7.  On 28 November 1982, the applicant departed AWOL.  He returned to military control on or about 28 February 1983.

8.  The court-martial charge sheet is not available.

9.  On 2 March 1983, 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 in lieu of trial by court-martial.  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.  

10.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He further understood that there was no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the ABCMR if he wished review of his discharge.  He submitted no statement in his own behalf.
11.  On or about 11 March 1983, the applicant was personally interviewed by the commander of the Fort Bragg, NC, Personnel Control Facility.  The applicant had stated that he departed AWOL due to family problems.  His wife was an abuser of "controlled substances" and was neglecting the care of their child.  The applicant stated that due to his concern for his wife and child's welfare he departed AWOL to care for them.  He surrendered to military authorities in order to clear his record.  He desired to be discharged, enabling him to return home to care for his family.  

12.  On 15 June 1983, the appropriate authority approved the applicant’s request and directed he receive a discharge under other than honorable conditions.

13.  On 29 June 1983, 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 under other than honorable conditions.  He had completed        2 years, 8 months, and 10 days of creditable active service and had 104 days of lost time.

14.  The applicant did not apply to the ADRB for a discharge upgrade.

15.  The applicant provided four letters of support from individuals who have known him for up to the past ten years and who all stated, in effect, that the applicant is a person of impeccable character.

16.  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 under other than honorable conditions is normally considered appropriate.  

17.  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.  

18.  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.

19.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.

2.  The applicant's interview with the commander of the Fort Bragg, NC, Personnel Control Facility that confirms the applicant's contentions that he had family problems.  

3.  However, it is also noted that the applicant had a record of AWOL prior to his getting married and that he had a record of using controlled substances himself.  

4.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  When the applicant requested discharge, he indicated that he further understood that there was no automatic upgrading of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the ABCMR if he wished a review of his discharge.

5.  The applicant's good post-service conduct is commendable; however, upgrading of his discharge is not warranted based upon the overall quality of his service.

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)                                         AR20080011590





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ABCMR Record of Proceedings (cont)                                         AR20080011590



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