IN THE CASE OF:	  

		BOARD DATE:	  7 October 2008

		DOCKET NUMBER:  AR20080012523 


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 (UOTHC) discharge be upgraded. 

2.  The applicant states, in effect, that he did not want to leave the military at the time of his discharge.  He also states, in effect, that his discharge was forced by his superiors.

3.  The applicant provides a copy of his separation document 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.  The applicant enlisted in the Regular Army on 17 March 1987, for a period of 
3 years.  He completed the required training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The highest rank he attained while serving on active duty was Private First Class (E-3).

3.  On 27 September 1988, the applicant accepted nonjudicial punishment (NJP) for failure to go at the time prescribed to his appointed place of duty on
4 September 1988.  His imposed punishment was a reduction to the grade of private E-2, a forfeiture of $175.00 pay for one month (suspended), and 14 days of restriction and extra duty.

4.  On 17 October 1988, the applicant accepted nonjudicial punishment (NJP) for making and uttering checks without sufficient funds to the US Army Commissary, on divers occasions from 5 July 1988 through 30 July 1988, totaling $497.33; and the European Stars and Strips Bookstore, from 21 July 1988 through 18 August 1988, totaling $332.85.  His imposed punishment was a forfeiture of $335.00 pay for 2 months, and 45 days of restriction and extra duty.

5.  The applicant’s record contains a DA From 2329 (Record of Trial by Summary Court-Martial), dated 7 December 1988, which shows that he was charged with being AWOL from 26 to 28 November 1988 and subsequently found guilty.  His imposed punishment was confinement for 30 days.

6.  On 15 August 1989, the applicant waived his rights to a medical examination prior to separation.

7.  On 22 August 1989, charges were preferred against the applicant for being AWOL from 17 April 1989 to 10 August 1989.

8.  On 23 August 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 

discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

10.  On 11 September 1989, the separation authority directed that the applicant be separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service and that he receive an under other than honorable conditions discharge.  On 20 November 1989, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time, confirms the applicant completed a total of 
2 years, 3 months, and 15 days of creditable active military service with 
103 days lost due to AWOL.

11.  On 3 November 1993, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

12.  Army Regulation 635-200 (Personnel Separations), in pertinent part, describes the program of instruction concerning the benefits derived from receiving an honorable discharge from the Army.  This program of instruction explains that the consequences of receiving an other-than-honorable discharge can have a lasting adverse effect on the individual Soldier.  The program affects all active Army enlisted personnel, Reserve Component (ARNGUS), and USAR enlisted personnel on active duty 180 days or more.

13.  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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded was carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant voluntarily requested and accepted a discharge in lieu of court-martial for having 115 days of lost time due to being AWOL.

3.  Based on his disciplinary record, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant either an honorable or a general discharge.

4.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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.



		___________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)                                         AR20080012523



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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