IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080012007 


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 under other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states that he had 8 years of honorable service in the United States Marine Corps from 1979 until 1988.  He states that as soon as he reported to Fort Benning, Georgia, he began claiming misrepresentation from the time that he was in advanced individual training and throughout the time that he was in the Ranger Battalion.  He states that he filed a misrepresentation claim through his congressman and with the ranger chaplain.  He states that his commanding officer could have directed an honorable discharge through his channels.  He states that because he was having some problems, he was being transferred to the 1st Battalion, 97th Infantry Regiment and that the chaplain was assured that the paperwork would be started for his discharge.  He states that his paperwork was not started and that he was told that since he was no longer in the Ranger Battalion, the ranger chaplain could not help him any longer. 

3.  The applicant provides in support of his application, a self-authored, letter dated 12 October 1988, addressed to the United States Army Recruiting Battalion, Louisville, Kentucky, contending misrepresentation during the processing of his enlistment in the United States Army; a letter from his 
brother-in-law, addressed to his Representative in Congress dated 12 October 1988; page 3 of the decision made in his case by the Army Discharge Review Board; and a copy of his United States Marine Corps Honorable Discharge Certificate.

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 available records indicate that after completing 7 years, 11 months, and 27 days of total prior active service as a member of the United States Marine Corps, the applicant enlisted in the United States Army Reserve under the Delayed Entry Program on 7 September 1988.  He enlisted in the Regular Army in the pay grade of E-4 on 12 September 1988 and he successfully completed his training as an infantryman.

3.  According to the documents that the applicant submitted in behalf of his application, he wrote a letter to the United States Army Recruiting Battalion, dated 12 October 1988, contending misrepresentation by a career counselor.  In the letter, he stated that he was told that in order to become an “unannounced ranger” he had to be awarded an 11X military occupational specialty (MOS).  He stated that he wanted to be basic infantry because he believed that promotions were faster.  He stated that he was told to go 11X and while he was at school, he could write his own ticket to whatever MOS he wanted.  He stated that he was told that all Soldiers in the pay grade of E-4 were corporals and that there were very few specialists in the Army unless you sit behind a typewriter.  He stated that he told the counselor he had to be a noncommissioned officer because he had been a noncommissioned officer since 1981.  

4.  In the letter, the applicant went on to state that he was told he was going to a school environment; that he needed to take civilian clothes as he would be treated like he had prior service; and that he would have weekends off while he was in advanced individual training.  In the letter, the applicant stated that when he got to Fort Benning, Georgia, taps was sounded; all tobacco products were taken; his head was shaved along with the other recruits; and he was told not to chew, use the phone, or even speak without permission.  He stated that he was 
not in a school environment; it was a boot camp environment.  The applicant went on to provide details regarding his experiences at Fort Benning and he requested any help that could be provided.

5.  In a letter addressed to the applicant’s Representative in Congress, dated 12 October 1988, the applicant’s brother-in-law thanked the Congressman for helping the applicant receive his promotion to sergeant (E-5) and his back pay as a result of his promotion.  His brother-in-law requested assistance in reviewing what took place during the applicant’s recruiting process.

6.  The applicant went absent without leave (AWOL) on 1 June 1989 and he remained absent in desertion until he surrendered to military authorities on 28 August 1989.  

7.  On 1 September 1989, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

8.  The appropriate authority approved the request for discharge on 10 September 1989 and he directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 22 November 1989, the applicant was discharged, under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 11 months and 14 days of total active service this period and he had approximately 2 months and 27 days of lost time due to AWOL.

9.  On 5 December 2001 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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 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.  A discharge under other than honorable conditions is normally considered appropriate.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, his contentions are not sufficiently mitigating to warrant an upgrade of his discharge.  He had over 7 years of prior active service and as such, he knew the consequences behind going AWOL.  

4.  He could have stood trial by court-martial, if he believed that his reasons for going AWOL were justified.  Instead he opted to submit a request for discharge for the good of the service in lieu of trial by court-martial.  The appropriate authority approved his request for discharge and he was discharged accordingly. Considering the nature of his offense, it does not appear that the type of discharge that he received was too harsh or unjust.

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 has failed to submit evidence that would satisfy this requirement.

6.  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)                                         AR20080012007



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ABCMR Record of Proceedings (cont)                                         AR20080012007



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