IN THE CASE OF:	  

		BOARD DATE:	        30 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011660 


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 his wife got pregnant by one of his sergeants which caused him to go absent without leave (AWOL).  He contends that he was raped by a sergeant and 2 other people in the motor pool, and that his unit tried to cover this up.  He was and is bipolar when he entered the Army, but he did not know this until 1998.  He also had knee injuries that are service related.    

3.  The applicant did not provide additional documentary evidence in support of this 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 30 January 1986, after prior service in the South Carolina Army National Guard, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 4 years.  On 10 February 1986, he was discharged from the DEP and enlisted in the Regular Army for 4 years.  He completed training requirements and was awarded military occupational specialty 63B (Light Weight Vehicle and Power Generator Mechanic). 

3.  On 13 November 1986, the applicant received a Letter of Reprimand for a civil conviction for reckless driving.  It was filed in his permanent Official Military Personnel File.

4.  On 4 February 1987, the applicant departed in AWOL status and remained so absent until 2 April 1987 when he surrendered to military authorities.
 
5.  On 6 April 1987, the applicant was charged with AWOL from 4 February –
2 April 1987.
 
6.  On 24 April 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.  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.  He did not submit a statement in his own behalf.

7.  On 30 April 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 3 June 1987, 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 1 year, 1 month, and 26 days of active duty service and had 58 days of lost time due to AWOL.  

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 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, an UOTHC discharge 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 (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.

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.

12.  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 evidence of record shows the applicant received a Letter of Reprimand and went AWOL for a period of 58 days.  He was charged with a serious offense under the UCMJ.  He voluntarily elected to submit a request for separation in lieu of trial by court-martial.

2.  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.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

3.  The applicant's contentions were noted; however, there is no evidence in his official record regarding his wife's pregnancy or that he was raped and that the unit tried to cover up the event.  He failed to provide any corroborating evidence of his contentions.  Therefore, the applicant's contentions alone do not provide a basis for a change in his characterization of discharge.

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service. 

5.  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

__XXX __  __XXX__  __XXX__   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)                                         AR20080011660



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ABCMR Record of Proceedings (cont)                                         AR20080011660



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